PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 230. GROUNDWATER AVAILABILITY CERTIFICATIONS FOR PLATTING
The Texas Commission on Environmental Quality (TCEQ,agency, or commission) proposes amendments to 30 Texas AdministrativeCode (TAC) §§230.1 - 230.11.
Background and Summary of the Factual Basis for the Proposed Rules
The purpose of this rule proposal is to implement the provisionsof Senate Bill (SB) 2440, passed during the 88th Texas Legislature'sRegular Session in 2023. Local Government Code (LGC), §212.0101and §232.0032 establish requirements for groundwater availabilitycertification in the municipal and county plat application and approvalprocess for proposed subdivisions when the groundwater beneath theland serves as the primary source of water supply. SB 2440 amended§212.0101(a) and §232.0032(a) to make groundwater availabilitycertification a mandatory component of the plat application and approvalprocess. SB 2440 also established specific circ*mstances under whicha municipal or county authority may waive the certification requirementby adding §212.0101(a)(1) and (a)(2) and §232.0032(a)(1)and (a)(2). SB 2440 became effective on January 1, 2024, and requiresthat existing TCEQ rules are continued in effect for plat applicationsfiled before January 1, 2024.
The charge to TCEQ under LGC, §212.0101(b) and (c) and §232.0032(b)and (c) is limited to adopting rules that establish the form and contentof a groundwater availability certification and require transmittalof specific information to the Texas Water Development Board and theapplicable groundwater conservation district. Currently, 30 TAC §230.1and §§230.3 - 230.11 include references to applicabilityand have embedded forms. Since applicability is addressed by LGC,§212.0101(a), (a)(1) and (a)(2) and §232.0032(a), (a)(1)and (a)(2) and does not require further definition, TCEQ proposesto replace applicability provisions with general provisions that identifythe purpose of the rule. The commission specifically seeks commentson whether to include a definition for "credible evidence," as itrelates to the waiver requirements defined by Local Government Code§§212.0101(a-1)(1) and 232.0032(a-1)(1), and what that definitionwould be. Since the current rules specify transmittal requirementsand groundwater availability certification contents, TCEQ also proposesto remove the embedded forms and replace those with references toTCEQ forms so that the format of the forms can be updated as technology changes.
Section by Section Discussion
§230.1, Applicability
LGC, §212.0101(b) and (c) and §232.0032(b) and (c) chargeTCEQ with adopting rules that establish the form and content of agroundwater availability certification and require transmittal ofspecific information to the Texas Water Development Board and theapplicable groundwater conservation district. TCEQ proposes amendmentsto this section that eliminate the applicability provisions becausethose are established by LGC, §212.0101(a), (a)(1), and (a)(2)and §232.0032(a), (a)(1), and (a)(2). Those provisions are replacedby general provisions that identify the purpose of the rule consistentwith LGC, §212.0101(b) and (c) and §232.0032(b) and (c)that charge TCEQ with adopting rules that establish the form and contentof a groundwater availability certification.
TCEQ also proposes amendments to remove the form embedded at §230.1(c)(2)and instead require submittal of Plat Attesting Form (TCEQ-20983).Removing the form from the rule allows for the format to change withtechnology over time. Conforming changes are proposed throughout 30TAC §230.1.
§230.2, Definitions
TCEQ proposes to delete the definition of "executive administrator"at §230.2(6), because "executive administrator" is not used independentlyfrom "of the Texas Water Development Board" within the chapter and,therefore, the definition is not necessary.
§230.3, Certification of Groundwater Availability for Platting
TCEQ proposes amendments that make conforming changes where thesesections reference the provisions modified at §230.1. TCEQ alsoproposes amendments to remove the form embedded at §230.3(c)and instead require submittal of Certification of Groundwater Availabilityfor Platting Form (TCEQ-20982). Removing the form from the rule allowsfor the format to change with technology over time. Conforming changesare proposed throughout 30 TAC §230.3.
§230.4, Administrative Information
TCEQ proposes amendments to §230.4 to make a conforming citationwhere the plat applicant "must" now follow 30 TAC Chapter 230 rules,rather than "may" or "shall" follow 30 TAC Chapter 230 rules. Theword "must," now replaces "may" and "shall," throughout §230.4.Additionally, amendments are proposed that make conforming changeswhere these sections reference the provisions modified at §230.1and §230.3.
TCEQ proposes amendments to require an email address with all contactinformation required by this section.
§§230.5 - 230.11
TCEQ proposes amendments to §§230.5 - 230.11 to makea conforming citation where the plat applicant "must" now follow 30TAC Chapter 230 rules, rather than "may" or "shall" follow 30 TACChapter 230 rules. The word "must," now replaces "may" and "shall,"throughout §§230.5 - 230.11. Additionally, the commissionproposes amendments that make conforming changes where these sectionsreference the provisions modified at §230.1 and §230.3.
Fiscal Note: Costs to State and Local Government
Kyle Girten, Analyst in the Budget and Planning Division, has determinedthat for the first five-year period the proposed rules are in effect,no costs are anticipated for the agency or for other units of stateor local government as a result of administration or enforcement ofthe proposed rule.
Public Benefits and Costs
Mr. Girten determined that for each year of the first five yearsthe proposed rules are in effect, the public benefit would be consistencywith state law, specifically SB 2440 from the 88th Regular LegislativeSession (2023). The proposed rulemaking would not result in fiscalimplications for businesses or individuals.
Local Employment Impact Statement
TCEQ reviewed this proposed rulemaking and determined that a LocalEmployment Impact Statement is not required because the proposed rulemakingdoes not adversely affect a local economy in a material way for thefirst five years that the proposed rule is in effect.
Rural Communities Impact Assessment
TCEQ reviewed this proposed rulemaking and determined that theproposed rulemaking does not adversely affect rural communities ina material way for the first five years that the proposed rules arein effect. The amendments would apply statewide and have the sameeffect in rural communities as in urban communities.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businessesdue to the implementation or administration of the proposed rule forthe first five-year period the proposed rules are in effect.
Small Business Regulatory Flexibility Analysis
TCEQ reviewed this proposed rulemaking and determined that a SmallBusiness Regulatory Flexibility Analysis is not required because theproposed rule does not adversely affect a small or micro-businessin a material way for the first five years the proposed rules arein effect.
Government Growth Impact Statement
TCEQ prepared a Government Growth Impact Statement assessment forthis proposed rulemaking. The proposed rulemaking does not createor eliminate a government program and would not require an increaseor decrease in future legislative appropriations to the agency. Theproposed rulemaking does not require the creation of new employeepositions, eliminate current employee positions, nor require an increaseor decrease in fees paid to the agency. The proposed rulemaking amendsan existing regulation to be consistent with state law. The proposedrulemaking does not increase or decrease the number of individualssubject to its applicability. During the first five years, the proposedrule should not impact positively or negatively the state's economy.
Draft Regulatory Impact Analysis Determination
TCEQ reviewed the proposed rulemaking in light of the regulatoryanalysis requirements of Texas Government Code, §2001.0225, anddetermined that the rulemaking is not subject to §2001.0225 becauseit does not meet the definition of a "Major environmental rule" asdefined in the Texas Administrative Procedure Act. A "Major environmentalrule" is a rule that is specifically intended to protect the environmentor reduce risks to human health from environmental exposure, and thatmay adversely affect in a material way the economy, a sector of theeconomy, productivity, competition, jobs, the environment, or thepublic health and safety of the state or a sector of the state.
This rulemaking does not meet the statutory definition of a "Majorenvironmental rule" because it is not the specific intent of the ruleto protect the environment or reduce risks to human health from environmentalexposure. The specific intent of the proposed rulemaking is to implementlegislative changes enacted by SB 2440, which requires groundwatercertification during the platting process.
In addition, the rulemaking does not meet the statutory definitionof a "Major environmental rule" because the proposed rule would notadversely affect in a material way the economy, a sector of the economy,productivity, competition, jobs, the environment, or the public healthand safety of the state or a sector of the state. The cost of complyingwith the proposed rule is not expected to be significant with respectto the economy.
Furthermore, the proposed rulemaking is not subject to Texas GovernmentCode, §2001.0225 because it does not meet any of the four applicabilityrequirements listed in Texas Government Code, §2001.0225(a).There are no federal standards governing groundwater certificationin the plat application and approval process. Second, the proposedrulemaking does not exceed an express requirement of state law. Third,the proposed rulemaking does not exceed a requirement of a delegationagreement or contract between the state and an agency or representativeof the federal government to implement a state and federal program.Finally, the proposed rulemaking is not an adoption of a rule solelyunder the general powers of the commission as the proposed rules arerequired by SB 2440.
TCEQ invites public comment regarding the Draft Regulatory ImpactAnalysis Determination during the public comment period. Written commentson the Draft Regulatory Impact Analysis Determination may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Takings Impact Assessment
TCEQ evaluated the proposed rule and performed an assessment ofwhether the proposed rule constitutes a taking under Texas GovernmentCode, Chapter 2007. The specific intent of the proposed rulemakingis to implement legislative changes enacted by Senate Bill 2440, whichrequires groundwater certification during the platting process withcertain exceptions. The proposed rule would substantially advancethis purpose by amending the Chapter 230 rules to incorporate thenew statutory requirements.
Promulgation and enforcement of this proposed rule would be neithera statutory nor a constitutional taking of private real property.The proposed rule does not affect a landowner's rights in privatereal property because this rulemaking does not relate to or have anyimpact on an owner's rights to property. The proposed rule would primarilyaffect landowners planning to use only groundwater to supply waterfor subdivisions; this would not be an effect on real property. Therefore,the adopted rulemaking would not constitute a taking under Texas GovernmentCode, Chapter 2007.
Consistency with the Coastal Management Program
TCEQ reviewed the proposed rules and found that they are neitheridentified in Coastal Coordination Act Implementation Rules, 31 TAC§505.11(b)(2) or (4), nor would they affect any action/authorizationidentified in Coastal Coordination Act Implementation Rules, 31 TAC§505.11(a)(6). Therefore, the proposed rules are not subjectto the Texas Coastal Management Program.
Written comments on the consistency of this rulemaking may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Announcement of Hearing
TCEQ will hold a hold a hybrid virtual and in-person public hearingon this proposal in Austin on June 24, 2024, at 2:00 p.m. in buildingF, room 2210 at TCEQ's central office located at 12100 Park 35 Circle.The hearing is structured for the receipt of oral or written commentsby interested persons. Individuals may present oral statements whencalled upon in order of registration. Open discussion will not bepermitted during the hearing; however, commission staff members willbe available to discuss the proposal 30 minutes prior to the hearingat 1:30 p.m.
Individuals who plan to attend the hearing virtually and want toprovide oral comments and/or want their attendance on record mustregister by Thursday, June 20, 2024. To register for the hearing,please email Rules@tceq.texas.gov and provide the following information:your name, your affiliation, your email address, your phone number,and whether or not you plan to provide oral comments during the hearing.Instructions for participating in the hearing will be sent on Friday,June 21, 2024, to those who register for the hearing.
For the public who do not wish to provide oral comments but wouldlike to view the hearing may do so at no cost at:
https://teams.microsoft.com/l/meetup-join/19%3ameeting_ZmFlNDM4MTktMTk0MS00ODlkLWE0MjctYWExYTZiOTBhNmJl%40thread.v2/0?context=%7B%22Tid%22%3A%22871a83a4-a1ce-4b7a-8156-3bcd93a08fba%22%2C%22Oid%22%3A%22e74a40ea-69d4-469d-a8ef-06f2c9ac2a80%22%2C%22IsBroadcastMeeting%22%3Atrue%2C%22role%22%3A%22a%22%7D&btype=a&role=a
Persons who have special communication or other accommodation needswho are planning to attend the hearing should contact Sandy Wong,Office of Legal Services at (512) 239-1802 or (800) RELAY-TX (TDD).Requests should be made as far in advance as possible.
Submittal of Comments
Written comments may be submitted to Gwen Ricco, MC 205, Officeof Legal Services, Texas Commission on Environmental Quality, P.O.Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic commentsmay be submitted at: https://tceq.commentinput.com/comment/search.File size restrictions may apply to comments being submitted via theTCEQ Public Comments system. All comments should reference Rule ProjectNumber 2024-006-230-OW. The comment period closes on June 25, 2024.Please choose one of the methods provided to submit your written comments.
Copies of the proposed rulemaking can be obtained from the commission'swebsite at https://www.tceq.texas.gov/rules/propose_adopt.html. For further information, please contact Abiy Berehe, GroundwaterPlanning and Assessment Team, by phone at (512) 239-5480 or by emailat abiy.berehe@tceq.texas.gov.
Statutory Authority
These amendments are proposed under Texas Water Code (TWC), §5.102,which establishes the Commission's general authority necessary tocarry out its jurisdiction; §5.103, which establishes the Commission'sgeneral authority to adopt rules; and §5.105, which establishesthe Commission's authority to set policy by rule. In addition, LocalGovernment Code, §212.0101(b) and §232.0032(b) require thecommission to promulgate rules that establish the appropriate formand content of a certification to be attached to a plat application.
The proposed amendments implement the language set forth in SB2440 from the 88th Texas Legislature.
§230.1.General [Applicability].
(a) Purpose. This chapter establishes the formand content of a certification to be attached to a [Subdivisionsutilizing groundwater as the source of water supply. In the]plat application [and approval process, municipal and countyauthorities may require certification that adequate groundwater isavailable for a proposed subdivision if groundwater under that landis to be the source of water supply. The municipal or county authorityis not required to exercise their authority] under Texas LocalGovernment Code, §212.0101 or §232.0032. [However,if they do exercise their authority, the form and content of thischapter must be used.]
[(b)] [Use of this chapter. If requiredby the municipal or county authority, the plat applicant and the Texaslicensed professional engineer or the Texas licensed professionalgeoscientist shall use this chapter and the attached form to certifythat adequate groundwater is available under the land of a subdivisionsubject to platting under Texas Local Government Code, §212.004and §232.001.] These rules do not replace:
(1) other state and federal requirementsapplicable to public drinking water supply systems; [.These rules do not replace]
(2) the authority of counties within designatedpriority groundwater management areas under Texas Water Code, §35.019;[,] or
(3) the authority of groundwater conservationdistricts under Texas Water Code, Chapter 36.
(b) [(c)] Transmittal of data. Copies [If use of this chapter is required by the municipalor county authority, the plat applicant shall:]
[(1)] [provide copies] of theinformation, estimates, data, calculations, determinations, statements,and certification required by §230.8 of this title (relatingto Obtaining Site-Specific Groundwater Data), §230.9 of thistitle (relating to Determination of Groundwater Quality), §230.10of this title (relating to Determination of Groundwater Availability),and §230.11 of this title (relating to Groundwater Availabilityand Usability Statements and Certification) must be providedwith the certification to:
(1) the executive administrator of the TexasWater Development Board, and
(2) [to] the applicable groundwaterconservation district or districts. [; and]
(c) [(2)] Plat AttestingForm. The Plat Attesting Form (TCEQ-20983) must be submitted withthe certification, attesting [using the attached form,attest] that copies of the information, estimates, data, calculations,determinations, statements, and the certification have been provided to:
(1) the executive administrator of the TexasWater Development Board, and
(2) the applicable groundwater conservationdistrict or districts. [The executive director may make minorchanges to this form that do not conflict with the requirements ofthese rules.]
[Figure: 30 TAC §230.1(c)(2)]
§230.2.Definitions.
The following words and terms, when used in this chapter, shallhave the following meanings, unless the context clearly indicatesotherwise. If a word or term used in this chapter is not containedin this section, it shall have the same definition and meaning asused in the practices applicable to hydrology and aquifer testing.
(1) Applicable groundwater conservation district ordistricts--Any district or authority created under Texas Constitution,Article III, Section 52, or Article XVI, Section 59, that:
(A) has the authority to regulate the spacing of waterwells, the production from water wells, or both, and
(B) which includes within its boundary any part ofthe plat applicant's proposed subdivision.
(2) Aquifer--A geologic formation, group of formations,or part of a formation that contains water in its voids or pores andmay be used as a source of water supply.
(3) Aquifer test--A test involving the withdrawal ofmeasured quantities of water from or addition of water to a well andthe measurement of resulting changes in water level in the aquiferboth during and after the period of discharge or addition for thepurpose of determining the characteristics of the aquifer. For thepurposes of this chapter, bail and slug tests are not considered tobe aquifer tests.
(4) Certification--A written statement of best professionaljudgement or opinion submitted [as attested to]on the Certification of Groundwater Availability for Platting Form (TCEQ-20982)and attested to on the Plat Attesting Form (TCEQ-20983) [containedunder §230.3(c) of this title (relating to Certification of GroundwaterAvailability for Platting)].
(5) Drinking water standards--As defined in commissionrules covering drinking water standards contained in Chapter 290,Subchapter F of this title (relating to Drinking Water Standards GoverningDrinking Water Quality and Reporting Requirements for Public Water Systems).
[(6) Executive administrator--The executive administrator of the Texas Water Development Board.]
(6) [(7)] Full build out--The final expected number of residences, businesses, or other dwellings in the proposed subdivision.
(7) [(8)] Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice.
(8) [(9)] Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.
(9) [(10)] Plat applicant--Theowner or the authorized representative or agent seeking approval ofa proposed subdivision plat application pursuant to municipal or county authority.
(10) [(11)] Requirements applicableto public drinking water supply systems--The requirements containedin commission rules covering public drinking water supply systemsin Chapter 290, Subchapter D of this title (relating to Rules andRegulations for Public Water Systems).
§230.3.Certification of Groundwater Availability for Platting.
(a) Preparation of the certification [Certification]. The certification required by this chapter must be preparedby a Texas licensed professional engineer or a Texas licensed professional geoscientist.
(b) Certification Requirements. Thecertification must meet the requirements relating to §§230.4- 230.11 (Administrative Information, Proposed Subdivision Information,Projected Water Demand Estimate, General Groundwater Resource Information,Obtaining Site-Specific Groundwater Data, Determination of GroundwaterQuality, Determination of Groundwater Availability, and GroundwaterAvailability and Usability Statements and Certification) of this chapter.
(c) [(b)] Submission of information. The certification must be submitted [The plat applicantshall provide] to the following:
(1) the municipal or county authority,
(2) the executive administrator of the TexasWater Development Board, and
(3) the applicable groundwater conservationdistrict or districts [the certification of adequacy of groundwaterunder the subdivision required by this chapter].
(d) [(c)] Form required. Thecertification required by this chapter must be submitted on the Certificationof Groundwater Availability for Platting Form (TCEQ-20982). [Thischapter and the following form shall be used and completed if platapplicants are required by the municipal or county authority to certifythat adequate groundwater is available under the land to be subdivided.The executive director may make minor changes to this form that donot conflict with the requirements of these rules.]
[Figure: 30 TAC §230.3(c)]
§230.4.Administrative Information.
At a minimum, the following general administrative information[as specified in §230.3(c) of this title (relating to Certificationof Groundwater Availability for Platting),] must [shall] be provided for a proposed subdivision for which groundwaterunder the land will be the source of water supply:
(1) the name of the proposed subdivision;
(2) any previous or other name(s) which identifiesthe tract of land;
(3) the name, address, phone number, email address, andfacsimile number of the property owner or owners;
(4) the name, address, phone number, email address, andfacsimile number of the person submitting the plat application;
(5) the name, address, phone number, email address, facsimilenumber, and registration number of the licensed professional engineeror the licensed professional geoscientist preparing the certificationas required in this chapter;
(6) the location and property description of the proposedsubdivision; and
(7) the tax assessor parcel number(s) by book, map,and parcel.
§230.5.Proposed Subdivision Information.
At a minimum, the following information pertaining to the proposedsubdivision must [shall] be provided [asspecified in §230.3(c) of this title (relating to Certificationof Groundwater Availability for Platting)]:
(1) the purpose of the proposed subdivision, for example,single family residential, multi-family residential, non-residential,commercial, or industrial;
(2) the size of the proposed subdivision in acres;
(3) the number of proposed lots within the proposed subdivision;
(4) the average size (in acres) of the proposed lotsin the proposed subdivision;
(5) the anticipated method of water distribution tothe proposed lots in the proposed subdivision including, but not limited to:
(A) an expansion of an existing public water supplysystem to serve the proposed subdivision (if groundwater under thesubdivision is to be the source of water supply);
(B) a new public water supply system for the proposed subdivision;
(C) individual water wells to serve individual lots; or
(D) a combination of methods;
(6) if the anticipated method of water distributionfor the proposed subdivision is from an expansion of an existing publicwater supply system or from a proposed public water supply system,evidence required under §290.39(c)(1) of this title (relatingto Rules and Regulations for Public Water Systems) which must [shall] be provided demonstrating that written application forservice was made to the existing water providers within a 1/2-mileradius of the subdivision; and
(7) any additional information required by the municipalor county authority as part of the plat application.
§230.6.Projected Water Demand Estimate.
(a) Residential water demand estimate. Residentialwater demand estimates at full build out must [shall]be provided [as specified in §230.3(c) of this title (relatingto Certification of Groundwater Availability for Platting)].Residential demand estimates must [shall], ata minimum, be based on the current demand of any existing residentialwell including those identified under §230.8(b) of this title(relating to Obtaining Site-Specific Groundwater Data), or §290.41(c)of this title (relating to Rules and Regulations for Public WaterSystems), and:
(1) the number of proposed housing units at full build out;
(2) the average number of persons per housing unit;
(3) the gallons of water required per person per day;
(4) the water demand per housing unit per year (acrefeet per year); and
(5) the total expected residential water demand peryear for the proposed subdivision (acre feet per year).
(b) Non-residential water demand estimate. Water demandestimates at full build out must [shall] beprovided for all non-residential uses [as specified in §230.3(c)of this title]. Non-residential uses must [shall]be specified by type of use and groundwater demand per year (acrefeet per year) for each type of use. The estimate must [shall] also include the existing non-residential demand of any wellincluding those identified under §230.8(b) of this title or §290.41(c)of this title.
(c) Total annual water demand estimate. An estimateof the total expected annual groundwater demand, including residentialand non-residential estimates at full build out (acre feet per year), must [shall] be provided [as specified in §230.3(c)of this title].
(d) Submission of information. The sources of informationused and calculations performed to determine the groundwater demandestimates as required by this section must [shall]be made available to the municipal or county authority if requested.The plat applicant must [shall] provide anyadditional groundwater demand information required by the municipalor county authority as part of the plat application.
§230.7.General Groundwater Resource Information.
(a) Aquifer identification. Using Texas Water DevelopmentBoard aquifer names, the aquifer(s) underlying the proposed subdivisionwhich is planned to be used as the source of water for the subdivision must [shall] be identified and generally described[as specified in §230.3(c) of this title (relating to Certificationof Groundwater Availability for Platting)].
(b) Geologic and groundwater information. To meet therequirements of this chapter, the following geologic and groundwaterinformation must [shall] be considered in planningand designing the aquifer test [under §230.8(c) of thistitle (relating to Obtaining Site-Specific Groundwater Data)]:
(1) the stratigraphy of the geologic formations underlyingthe subdivision;
(2) the lithology of the geologic strata;
(3) the geologic structure;
(4) the characteristics of the aquifer(s) and theirhydraulic relationships;
(5) the recharge to the aquifer(s), and movement anddischarge of groundwater from the aquifer(s); and
(6) the ambient quality of water in the aquifer(s).
§230.8.Obtaining Site-Specific Groundwater Data.
(a) Applicability of section. This section is applicableonly if the proposed method of water distribution for the proposedsubdivision is individual water wells on individual lots. If expansionof an existing public water supply system or installation of a newpublic water supply system is the proposed method of water distributionfor the proposed subdivision, site-specific groundwater data must [shall] be developed under the requirements of Chapter 290, SubchapterD of this title (relating to Rules and Regulations for Public WaterSystems) and the information developed in meeting these requirements must [shall] be attached to the [form requiredunder §230.3 of this title (relating to] Certificationof Groundwater Availability for Platting Form [)].
(b) Location of existing wells. All known existing,abandoned, and inoperative wells within the proposed subdivision must [shall] be identified, located, and mapped by on-sitesurveys. Existing well locations must [shall]be illustrated on the plat required by the municipal or county authority.
(c) Aquifer testing. Utilizing the information consideredunder §230.7(b) of this title (relating to General GroundwaterResource Information), an aquifer test must [shall]be conducted to characterize the aquifer(s) underlying the proposedsubdivision. The aquifer test must provide sufficient informationto allow evaluation of each aquifer that is being considered as asource of residential and non-residential water supply for the proposedsubdivision. Appropriate aquifer testing must [shall]be based on typical well completions. An aquifer test conducted underthis section utilizing established methods must [shall]be reported [as specified in §230.3(c) of this title]and must [shall] include, but not be limitedto, the following items.
(1) Test well and observation well(s). At a minimum,one test well (i.e., pumping well) and one observation well, must [shall] be required to conduct an adequate aquifer test underthis section. Additional observation wells must [shall]be used for the aquifer test if it is practical or necessary to confirmthe results of the test. The observation well(s) must [shall] be completed in the same aquifer or aquifer production zoneas the test well. The locations of the test and observation well(s) must [shall] be shown on the plat required by themunicipal or county authority.
(2) Location of wells. The test and observation well(s)must be placed within the proposed subdivision and must [shall] be located by latitude and longitude. The observationwell(s) must [shall] be located at a radialdistance such that the time-drawdown data collected during the plannedpumping period fall on a type curve of unique curvature. In general,observation wells in unconfined aquifers should be placed no fartherthan 300 feet from the test well, and no farther than 700 feet inthick, confined aquifers. The observation well should also be placedno closer to the test well than two times the thickness of the aquifer'sproduction zone. The optimal location for the observation well(s)can be determined by best professional judgement after completionand evaluation of the test well as provided in paragraph (4) of this subsection.
(3) Lithologic and geophysical logs. The test and observationwells must [shall] be lithologically and geophysicallylogged to map and characterize the geologic formation(s) and the aquifer(s)in which the aquifer test(s) is to be performed.
(A) A lithologic log must [shall]be prepared showing the depth of the strata, their thickness and lithology(including size, range, and shape of constituent particles as wellas smoothness), occurrence of water bearing strata, and any otherspecial notes that are relevant to the drilling process and to theunderstanding of subsurface conditions.
(B) Geophysical logs must [shall]be prepared which provide qualitative information on aquifer characteristicsand groundwater quality. At a minimum, the geophysical logs must [shall] include an electrical log with shallow and deep-investigativecurves (e.g., 16-inch short normal/64-inch long normal resistivitycurves or induction log) with a spontaneous potential curve.
(C) The municipal or county authority may, on a case-by-casebasis, waive the requirement of geophysical logs as required underthis section if it can be adequately demonstrated that the logs arenot necessary to characterize the aquifer(s) for testing purposes.
(4) Well development and performance. The test andobservation well(s) must [shall] be developedprior to conducting the aquifer test to repair damage done to theaquifer(s) during the drilling operation. Development must [shall] ensure [insure] that the hydraulicproperties of the aquifer(s) are restored as much as practical totheir natural state.
(A) Well development procedures applied to the well(s)may vary depending on the drilling method used and the extent of thedamage done to the aquifer(s).
(B) During well development, the test well must [shall] be pumped for several hours to determine the specificcapacity of the well, the maximum anticipated drawdown, the volumeof water produced at certain pump speeds and drawdown, and to determineif the observation well(s) are suitably located to provide useful data.
(C) Water pumped out of the well during well development must [shall] not be allowed to influence initialwell performance results.
(D) Aquifer testing required by this section must [shall] be performed before any acidization or other flow-capacityenhancement procedures are applied to the test well.
(5) Protection of groundwater. All reasonably necessaryprecautions must [shall] be taken during constructionof test and observation wells to ensure that surface contaminantsdo not reach the subsurface environment and that undesirable groundwater(water that is injurious to human health and the environment or waterthat can cause pollution to land or other waters) if encountered,is sealed off and confined to the zone(s) of origin.
(6) Duration of aquifer test and recovery. The durationof the aquifer test depends entirely on local and geologic conditions.However, the test must [shall] be of sufficientduration to observe a straight-line trend on a plot of water levelversus the logarithm of time pumped. Water pumped during the test must [shall] not be allowed to influence the test results.Aquifer testing must [shall] not commence untilwater levels (after well development) have completely recovered totheir pre-development level or at least to 90% of that level.
(A) At a minimum, a 24-hour uniform rate aquifer test must [shall] be conducted. Testing must [shall] continue long enough to observe a straight-line trendon a plot of water level versus the logarithm of time pumped. If necessary,the duration of the test should be extended beyond the 24-hour minimumlimit until the straight-line trend is observed.
(i) If it is impractical to continue the test untila straight-line trend of water level versus the logarithm of timepumped is observed within the 24-hour limit, the test must [shall] continue at least until a consistent pumping-level trendis observed. In such instances, failure to observe the straight-linetrend must [shall] be recorded.
(ii) If the pumping rates remain constant for a periodof at least four hours and a straight-line trend is observed on aplot of water level versus the logarithm of time pumped before the24-hour limit has been reached, the pumping portion of the test maybe terminated.
(iii) The frequency of water level measurements duringthe aquifer test must [shall] be such that adequatedefinition of the time-drawdown curve is made available. As much informationas possible must [shall] be obtained in thefirst ten minutes of testing (i.e., pumping).
(B) Water-level recovery data must [shall]be obtained to verify the accuracy of the data obtained during thepumping portion of the test. Recovery measurements must [shall] be initiated immediately at the conclusion of the pumpingportion of the aquifer test and must [shall]be recorded with the same frequency as those taken during the pumpingportion of the aquifer test. Time-recovery measurements must [shall] continue until the water levels have recovered to pre-pumpinglevels or at least to 90% of that level. If such recovery is not possible,time-recovery measurements should continue until a consistent trendof recovery is observed.
(7) Use of existing wells and aquifer test data.
(A) An existing well may be utilized as an observationwell under this section if sufficient information is available forthat well to demonstrate that it meets the requirements of this section.
(B) The municipal or county authority may accept theresults of a previous aquifer test in lieu of a new test if:
(i) the previous test was performed on a well locatedwithin a 1/4-mile radius of the subdivision;
(ii) the previous test fully meets all the requirementsof this section;
(iii) the previous test was conducted on an aquiferwhich is being considered as a source of water supply for the proposedsubdivision; and
(iv) aquifer conditions (e.g., water levels, gradients,etc.) during the previous test were approximately the same as theyare presently.
(8) Need for additional aquifer testing and observationwells. Best professional judgement must [shall]be used to determine if additional observation wells or aquifer testsare needed to adequately demonstrate groundwater availability. TheTheis and Cooper-Jacob nonequilibrium equations, and acceptable modificationsthereof, are based on well documented assumptions. To determine ifadditional information is needed, best professional judgement must [shall] be used to consider these assumptions, the site-specificinformation derived from the aquifer test required by this section,the size of the proposed subdivision, and the proposed method of water delivery.
(d) Submission of information. The information, data,and calculations required by this section must [shall]be made available to the municipal or county authority, if requested,to document the requirements of this section as part of the plat application.
§230.9.Determination of Groundwater Quality.
(a) Water quality analysis. Water samples must [shall] be collected near the end of the aquifer test for chemicalanalysis. Samples must [shall] be collectedfrom each aquifer being considered for water supply for the proposedsubdivision and reported on or attached to the Certificationof Groundwater Availability Form (TCEQ-20982) [as specifiedin §230.3(c) of this title (relating to Certification of GroundwaterAvailability for Platting)].
(1) For proposed subdivisions where the anticipatedmethod of water delivery is from an expansion of an existing publicwater supply system or a new public water supply system, the samples must [shall] be submitted for bacterial and chemicalanalysis as required by Chapter 290, Subchapter F of this title (relatingto Drinking Water Standards Governing Drinking Water Quality and ReportingRequirements For Public Water Systems).
(2) For proposed subdivisions where the anticipatedmethod of water delivery is from individual water supply wells onindividual lots, samples must [shall] be analyzedfor the following:
(A) chloride;
(B) conductivity;
(C) fluoride;
(D) iron;
(E) nitrate (as nitrogen);
(F) manganese;
(G) pH;
(H) sulfate;
(I) total hardness;
(J) total dissolved solids; and
(K) presence/absence of total coliform bacteria.
(3) Conductivity and pH values may be measured in thefield, and the other constituents must [shall] be analyzedin a laboratory accredited by the agency according to Chapter 25,Subchapters A and B of this title (relating to General Provisionsand Environmental Testing Laboratory Accreditation, respectively)or certified by the agency according to Chapter 25, Subchapters Aand C of this title (relating to General Provisions and EnvironmentalTesting Laboratory Certification, respectively).
(b) Submission of information. The information, data,and calculations required by this section must [shall]be made available to the municipal or county authority, if requested,to document the requirements of this section as part of the plat application.
§230.10.Determination of Groundwater Availability.
(a) Time frame for determination of groundwater availability.At a minimum, both a short- and long-term determination of groundwateravailability must [shall] be made, each consideringthe estimated total water demand at full build out of the proposedsubdivision. Groundwater availability must [shall]be determined for ten years and 30 years and for any other time frame(s)required by the municipal or county authority.
(b) Other considerations in groundwater availabilitydetermination. Groundwater availability determinations must [shall] take into account the anticipated method of water deliveryas identified under §230.5 of this title (relating to ProposedSubdivision Information) and will be compared to annual demand estimatesat full build out as determined under §230.6 of this title (relatingto Projected Water Demand Estimate).
(c) Determination of aquifer parameters. The parametersof the aquifer(s) being considered to supply water to the proposedsubdivision must [shall] be determined utilizingthe information considered under §230.7 of this title (relatingto General Groundwater Resource Information) and data obtained duringthe aquifer test required under §230.8 of this title (relatingto Obtaining Site-Specific Groundwater Data) for individual waterwells or under Chapter 290, Subchapter D of this title (relating toRules and Regulations for Public Water Systems) and reported onor attached to the Certification of Groundwater Availability Form(TCEQ-20982) [as specified in §230.3(c) of this title(relating to Certification of Groundwater Availability for Platting)].The time-drawdown and time-recovery data obtained during the aquifertest must [shall] be used to determine aquiferparameters utilizing the nonequilibrium equations developed by Theisor Cooper-Jacob, or acceptable modifications thereof. The followingaquifer parameters must [shall] be determined:
(1) rate of yield and drawdown;
(2) specific capacity;
(3) efficiency of the pumped (test) well;
(4) transmissivity;
(5) coefficient of storage;
(6) hydraulic conductivity;
(7) recharge or barrier boundaries, if any are present; and
(8) thickness of the aquifer(s).
(d) Determination of groundwater availability. Usingthe information and data identified and determined in subsections(b) and (c) of this section, the following calculations must [shall] be made.
(1) Time-drawdown. The amount of drawdown at the pumpedwell(s) and at the boundaries of the proposed subdivision must [shall] be determined for the time frames identified under subsection(a) of this section.
(2) Distance-drawdown. The distance(s) from the pumpedwell(s) to the outer edges of the cone(s)-of-depression must [shall] be determined for the time frames identified under subsection(a) of this section.
(3) Well interference. For multiple wells in a proposedsubdivision, calculations must [shall] be made to:
(A) determine how pumpage from multiple wells willaffect drawdown in individual wells for the time frames identifiedunder subsection (a) of this section; and
(B) determine a recommended minimum spacing limit betweenindividual wells and well yields from the wells that will allow forthe continued use of the wells for the time frames identified undersubsection (a) of this section.
(e) Determination of groundwater quality. The waterquality analysis required under §230.9 of this title (relatingto Determination of Groundwater Quality) must [shall]be compared to primary and secondary public drinking water standardsand the findings documented on or attached to the Certificationof Groundwater Availability Form (TCEQ-20982) [as specifiedin §230.3(c) of this title].
(f) Submission of information. The information, data,and calculations required by this section must [shall]be made available to the municipal or county authority, if requested [required], to document the requirements of thissection as part of the plat application.
§230.11.Groundwater Availability and Usability Statements and Certification.
(a) Groundwater availability and usability statements.Based on the information developed under §230.10 of this title(relating to Determination of Groundwater Availability), the followinginformation must [shall] be provided onor attached to the Certification of Groundwater Availability Form(TCEQ-20982) [as specified in §230.3(c) of this title(relating to Certification of Groundwater Availability for Platting)]:
(1) the estimated drawdown of the aquifer at the pumpedwell(s) over a ten-year period and over a 30-year period;
(2) the estimated drawdown of the aquifer at the subdivisionboundary over a ten-year period and over a 30-year period;
(3) the estimated distance from the pumped well(s)to the outer edges of the cone(s)-of-depression over a ten-year periodand over a 30-year period;
(4) the recommended minimum spacing limit between wellsand the recommended well yield; and
(5) the sufficiency of available groundwater qualityto meet the intended use of the platted subdivision.
(b) Groundwater availability determination conditions.The assumptions and uncertainties that are inherent in the determinationof groundwater availability must [should] beclearly identified [as specified in §230.3(c) of this title].These conditions must be identified to adequately define the basis [bases] for the availability and usability statements. Thesebasis [bases] may include, but are not limited to, uncontrollableand unknown factors such as:
(1) future pumpage from the aquifer or from interconnectedaquifers from area wells outside of the subdivision or any other factorthat cannot be predicted that will affect the storage of water inthe aquifer;
(2)long-term impacts to the aquifer based on climaticvariations; and
(3)future impacts to usable groundwater due to unforeseenor unpredictable contamination.
(c)Certification. Based on best professional judgement,current groundwater conditions, and the information developed andpresented on or attached to the Certification of GroundwaterAvailability Form (TCEQ-20982), [in the form specifiedby §230.3(c) of this title], the licensed professionalengineer or licensed professional geoscientist must certify [certifies] by signature, seal, and date that adequate groundwateris available from the underlying aquifer(s) to supply the estimateddemand of the proposed subdivision.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402130
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-6087
CHAPTER 281. APPLICATIONS PROCESSINGThe Texas Commission on Environmental Quality (TCEQ, agency,or commission) proposes amendment of §§281.1, 281.5, and281.22; and the repeal of §§281.30, 281.31, and 281.32.
Background and Summary of the Factual Basis for the Proposed Rules
Electronic Application Submittal
The rulemaking would implement Senate Bill (SB) 1397, 88th Legislature,2023, by requiring a person who submits an application under §281.5(a)to submit an accurate duplicate of the application in electronic format.SB 1397 enacted Texas Water Code (TWC), §5.1734, which requiresthe commission to post an electronic copy of a permit applicationat the time the application is declared administratively complete.Application forms will provide detailed information regarding submittinga copy of the application in electronic format such as formatting,frequency, and timing of the submittal.
Obsolete Rule Repeal
The rulemaking would also delete one subsection, §281.22(c),and repeal three sections that the commission identified as obsoleteduring the quadrennial rule review of Chapter 281 (44 TexReg 7717):§281.30 (Applicability of Prioritization Procedures for CommercialHazardous Waste Management Facility Permit Applications); §281.31(Definitions); and §281.32 (Prioritization Process). These sectionsimplemented Texas Health and Safety Code (THSC), §361.0232 and§361.0871(c) enacted by SB 1099, 72nd Legislature, 1991, andsubsequently repealed by House Bill (HB) 7, 78th Legislature, 2003,Third Called Session.
As part of this rulemaking, the commission is also proposing revisionsto 30 Texas Administrative Code (TAC) Chapter 328, Waste Minimizationand Recycling; Chapter 330, Municipal Solid Waste; and Chapter 335,Industrial Solid Waste and Municipal Hazardous Waste, concurrentlyin this issue of the Texas Register.
Section by Section Discussion
§281.1, Purpose
The commission proposes to amend §281.1 to replace the nameof the commission's predecessor agency, Texas Natural Resource ConservationCommission, with the commission's current name, Texas Commission onEnvironmental Quality, and to remove obsolete rule sections regardingthe prioritization procedure for commercial hazardous waste managementfacility permit applications under §§281.30 - 281.32 byrepealing §§281.30 - 281.32.
§281.5, Application for WastewaterDischarge, Underground Injection, Municipal Solid Waste, RadioactiveMaterial, Hazardous Waste, and Industrial Solid Waste Management Permits
The commission proposes new §281.5(b) to require a personwho submits an application under §281.5(a) to submit an accurateduplicate of the application in electronic format to implement SB1397. The commission also proposes to revise §281.5(a)(4) toconform with drafting standards by removing the term "agency" andreplacing it with the term "commission."
§281.22, Referral to Commission
The commission proposes to delete §281.22(c). The statutorybasis for this subsection was repealed.
§281.30, Applicability of PrioritizationProcedures for Commercial Hazardous Waste Management Facility PermitApplications
The commission proposes to repeal §281.30. The statutory basisfor this section was repealed.
§281.31, Definitions
The commission proposes to repeal §281.31. The statutory basisfor this section was repealed.
§281.32, Prioritization Process
The commission proposes to repeal §281.32. The statutory basis for this section was repealed.
Fiscal Note: Costs to State and Local Government
Kyle Girten, Analyst in the Budget and Planning Division, has determined that for the first five-year period the proposed rules are in effect, no costs are anticipated for the agency or for other units of state or local government as a result of administration or enforcement of the proposed rule.
Public Benefits and Costs
Mr. Girten determined that for each year of the first five years the proposed rules are in effect, the public benefit will be consistency with state law, specifically SB 1397, 88th Texas Legislature, 2023, which enacted TWC, §5.1734. Additionally, the public will benefitfrom the repeal of obsolete rules.
The proposed rulemaking is unlikely to result in fiscal implicationsto businesses and industries. Entities with applicable permits wouldnow be required to submit an electronic copy of permit applications(§281.5). No fiscal impacts are anticipated because it is likelythat all such businesses already have the means to convert applicationsinto electronic format and upload files.
The proposed rulemaking is not anticipated to result in fiscalimplications for individuals.
Local Employment Impact Statement
The commission reviewed this proposed rulemaking and determinedthat a Local Employment Impact Statement is not required because theproposed rulemaking does not adversely affect a local economy in amaterial way for the first five years that the proposed rule is ineffect.
Rural Community Impact Assessment
The commission reviewed this proposed rulemaking and determinedthat the proposed rulemaking does not adversely affect rural communitiesin a material way for the first five years that the proposed rulesare in effect. The amendments would apply statewide and have the sameeffect in rural communities as in urban communities.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businessesdue to the implementation or administration of the proposed rule forthe first five-year period the proposed rules are in effect.
Small Business Regulatory Flexibility Analysis
The commission reviewed this proposed rulemaking and determinedthat a Small Business Regulatory Flexibility Analysis is not requiredbecause the proposed rule does not adversely affect a small or micro-businessin a material way for the first five years the proposed rules arein effect.
Government Growth Impact Statement
The commission prepared a Government Growth Impact Statement assessmentfor this proposed rulemaking. The proposed rulemaking does not createor eliminate a government program and will not require an increaseor decrease in future legislative appropriations to the agency. Theproposed rulemaking does not require the creation of new employeepositions, eliminate current employee positions, nor require an increaseor decrease in fees paid to the agency. The proposed rulemaking amendsan existing regulation to be consistent with state law, and it doesnot create, expand, repeal, or limit an existing regulation. The proposedrulemaking does not increase or decrease the number of individualssubject to its applicability. During the first five years, the proposedrule should not impact positively or negatively the state's economy.
Draft Regulatory Impact Analysis Determination
The commission reviewed the proposed rulemaking in light of theregulatory analysis requirements of Texas Government Code, §2001.0225and determined that the rulemaking is not subject to Texas GovernmentCode, §2001.0225. Texas Government Code, §2001.0225 appliesto a "Major environmental rule" which is defined in Texas GovernmentCode, §2001.0225(g)(3) as a rule with a specific intent "to protectthe environment or reduce risks to human health from environmentalexposure and that may adversely affect in a material way the economy,a sector of the economy, productivity, competition, jobs, the environment,or the public health and safety of the state or a sector of the state."
First, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because its specific intent is notto protect the environment or reduce risks to human health from environmentalexposure. The specific intent of the proposed rulemaking is to requirea person who submits an application under §281.5(a) to submitan accurate duplicate of the application in electronic format andto amend and repeal obsolete TCEQ rules in Chapter 281 relating tothe referral of applications to the commission and the implementationof the prioritization procedure for commercial hazardous waste managementfacility permit applications.
Second, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because the proposed rules will notadversely affect in a material way the economy, a sector of the economy,productivity, competition, jobs, the environment, or the public healthand safety of the state or a sector of the state. It is not anticipatedthat the cost of complying with the proposed rules will be significantwith respect to the economy as a whole or with respect to a sectorof the economy; therefore, the proposed rulemaking will not adverselyaffect in a material way the economy, a sector of the economy, productivity,competition, jobs, the environment, or the public health and safetyof the state or a sector of the state.
Finally, the proposed rulemaking does not meet any of the fourapplicability requirements for a "Major environmental rule" listedin Texas Government Code, §2001.0225(a). Texas Government Code,§2001.0225 only applies to a major environmental rule, the resultof which is to: 1) exceed a standard set by federal law, unless therule is specifically required by state law; 2) exceed an express requirementof state law, unless the rule is specifically required by federallaw; 3) exceed a requirement of a delegation agreement or contractbetween the state and an agency or representative of the federal governmentto implement a state and federal program; or 4) adopt a rule solelyunder the general powers of the agency instead of under a specificstate law. This proposed rulemaking does not meet any of the fourpreceding applicability requirements.
This proposed rulemaking does not meet the statutory definitionof a "Major environmental rule," nor does it meet any of the fourapplicability requirements for a "Major environmental rule." Therefore,this rulemaking is not subject to Texas Government Code, §2001.0225.
The commission invites public comment regarding the Draft RegulatoryImpact Analysis Determination during the public comment period. Writtencomments on the Draft Regulatory Impact Analysis Determination maybe submitted to the contact person at the address listed under theSubmittal of Comments section of this preamble.
Takings Impact Assessment
The commission has prepared a takings impact assessment for theseproposed rules in
accordance with Texas Government Code, §2007.043. The commission'spreliminary
assessment is that implementation of these proposed rules wouldnot constitute a taking
of real property. The commission proposes this rulemaking for thepurpose of implementing SB 1397 and for the purpose of amending andrepealing obsolete TCEQ rules in Chapter 281 that the commission identifiedduring the quadrennial rule review.
The commission's analysis indicates that Texas Government Code,Chapter 2007, does not apply to these proposed rules based upon exceptionsto applicability in Texas Government Code, §2007.003(b)(4) and(5). First, the proposed rulemaking would implement SB 1397 by creatingnew §281.5(b) to require a person who submits an applicationunder §281.5(a) to submit an accurate duplicate of the applicationin electronic format. This action is reasonably taken to fulfill anobligation mandated by state law; therefore, Texas Government Code,Chapter 2007, does not apply to this proposed rule based upon theexception to applicability in Texas Government Code, §2007.003(b)(4).Second, the proposed rulemaking would delete one subsection, §281.22(c),and repeal three sections that the commission identified as obsoleteduring the quadrennial rule review of Chapter 281 (44 TexReg 7717):§281.30 (Applicability of Prioritization Procedures for CommercialHazardous Waste Management Facility Permit Applications); §281.31(Definitions); and §281.32 (Prioritization Process). These sectionsimplemented Texas Health and Safety Code (THSC) §361.0232 and§361.0871(c) enacted by SB 1099, 72nd Legislature, 1991, andsubsequently repealed by HB 778th Legislature, 2003, Third CalledSession. The proposed repeal of §281.22(c) and §281.30 through§281.32 reflect TCEQ having discontinued the prioritization procedurefor commercial hazardous waste management facility permit applicationswhich provides a unilateral expectation that does not rise to thelevel of a recognized interest in private real property. Therefore,Texas Government Code, Chapter 2007 does not apply to these proposedrule changes because the proposed rulemaking falls within the exceptionunder Texas Government Code, §2007.003(b)(5).
Further, the commission determined that promulgation of these proposedrules will be neither a statutory nor a constitutional taking of privatereal property. Specifically, there are no burdens imposed on privatereal property under the rulemaking because the proposed rules neitherrelate to, nor have any impact on, the use or enjoyment of privatereal property, and there will be no reduction in property value asa result of these rules. Therefore, the proposed rules will not constitutea taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the proposed rulemaking and found the proposalis a rulemaking identified in the Coastal Coordination Act ImplementationRules, 31 TAC §505.11(b)(4) relating to rules subject to theCoastal Management Program, and will, therefore, require that goalsand policies of the Texas Coastal Management Program (CMP) be consideredduring the rulemaking process.
The commission reviewed this rulemaking for consistency with theCMP goals and policies in accordance with the regulations of the CoastalCoordination Advisory Committee and determined that the amendmentsare consistent with CMP goals and policies because the rulemakingwill not have direct or significant adverse effect on any coastalnatural resource areas; will not have a substantive effect on commissionactions subject to the CMP; and promulgation and enforcement of theamendments will not violate (exceed) any standards identified in theapplicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Announcement of Hearing
The commission will hold a hybrid virtual and in-person publichearing on this proposal in Austin on June 20, 2024, at 10:00 a.m.in Building F, Room 2210, at the commission's central office locatedat 12100 Park 35 Circle. The hearing is structured for the receiptof oral or written comments by interested persons. Individuals maypresent oral statements when called upon in order of registration.Open discussion will not be permitted during the hearing; however,commission staff members will be available to discuss the proposal30 minutes prior to the hearing at 9:30 a.m.
Individuals who plan to attend the hearing virtually and want toprovide oral comments and/or want their attendance on record mustregister by June 14, 2024. To register for the hearing, please email,Rules@tceq.texas.gov and provide the following information: your name,your affiliation, your email address, your phone number, and whetheror not you plan to provide oral comments during the hearing. Instructionsfor participating in the hearing will be sent on June 18, 2024, tothose who register for the hearing.
For the public who do not wish to provide oral comments but wouldlike to view the hearing may do so at no cost at: https://teams.microsoft.com/l/meetup-join/19%3ameeting_Zjg1MDI0YmYtNGYwYi00ZWU4LTg5MWYtMDg3MTBiNTc1ODc4%40thread.v2/0?context=%7B%22Tid%22%3A%22871a83a4-a1ce-4b7a-8156-3bcd93a08fba%22%2C%22Oid%22%3A%22e74a40ea-69d4-469d-a8ef-06f2c9ac2a80%22%2C%22IsBroadcastMeeting%22%3Atrue%2C%22role%22%3A%22a%22%7D&btype=a&role=a
Persons who have special communication or other accommodation needswho are planning to attend the hearing should contact Sandy Wong,Office of Legal Services at (512) 239-1802 or 1-800-RELAY-TX (TDD).Requests should be made as far in advance as possible.
Submittal of Comments
Written comments may be submitted to Gwen Ricco, MC 205, Officeof Legal Services, Texas Commission on Environmental Quality, P.O.Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic commentsmay be submitted at: https://tceq.commentinput.com/comment/search.File size restrictions may apply to comments being submitted via theTCEQ Public Comments system. All comments should reference Rule ProjectNumber 2023-135-330-WS. The comment period closes at 11:59 p.m. onJune 25, 2024. Please choose one of the methods provided to submityour written comments.
Copies of the proposed rulemaking can be obtained from the commission'swebsite at https://www.tceq.texas.gov/rules/propose_adopt.html. Forfurther information, please contact Jarita Sepulvado, Waste PermitsDivision, (512) 239-4413.
SUBCHAPTER A. APPLICATIONS PROCESSING
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; TWC, §5.128, whichauthorizes the commission to utilize electronic means of transmissionof information, including notices, orders, and decisions issued orsent by the commission; TWC, §5.1734, which requires the commissionto post permit applications and associated materials on its website;TWC, §27.012, which requires the commission to prescribe formsfor permit applications to authorize injection wells under its jurisdiction;TWC, §27.019, which requires the commission to adopt rules andprocedures reasonably required for the performance of its powers,duties, and functions under TWC, Chapter 27; the Administrative ProceduresAct under Texas Government Code, Chapter 2001, which authorizes thecommission as a state agency to adopt rules pursuant to the rulemakingprocess; Texas Government Code, §2001.039 and 1 Texas AdministrativeCode, Chapter 91, Subchapter D, which authorize the commission asa state agency to review and consider for readoption each of its rulesnot later than the fourth anniversary of the date on which the ruletakes effect and every four years after that date; Texas Health andSafety Code (THSC), §361.011, which establishes the commission'sjurisdiction over the regulation, management, and control of municipalsolid waste; THSC, §361.015, which authorizes the commissionto license and regulate radioactive waste-storage, processing anddisposal activities; THSC, §361.017, which establishes the commission'sjurisdiction over the regulation, management, and regulation and controlof industrial solid waste and hazardous municipal waste; THSC, §361.024,which authorizes the commission to adopt rules consistent with thegeneral purposes of the Solid Waste Disposal Act in accordance withthe Administrative Procedures Act; THSC, §361.061, which authorizesthe commission to issue permits authorizing facilities for the storage,processing and disposal of industrial solid waste; THSC, §361.064,which requires the commission to prescribe the form of, requirementsand procedures for a permit application for a solid waste facility;and THSC, §401, which grants the commission authority over licensesfor the disposal of radioactive substances.
The proposed amendment to §281.5 would implement Senate Bill(SB) 1397, 88th Legislature, 2023, which enacted TWC, §5.1734.The proposed amendments would also delete one subsection, §281.22(c),that the commission identified as obsolete during the quadrennialrule review of Chapter 281 (44 TexReg 7717). These sections implementedTHSC, §361.0232 and §361.0871(c), SB 1099, 72nd legislature,1991, and subsequently repealed by House Bill 7, 78th Legislature,2003, Third Called Session.
§281.1.Purpose.
It is the intent of the Texas Commission on EnvironmentalQuality [Texas Natural Resource Conservation Commission]to establish a general policy for the processing of applications forpermits, licenses and other types of approvals in order to achievethe greatest efficiency and effectiveness possible. To this end, itis the policy of the commission that applications for permits, licenses,and other types of approvals listed in §281.2 of this title (relatingto Applicability) be processed by the executive director accordingto the schedule established in this chapter [, except as providedby implementation of the prioritization procedure for commercial hazardouswaste management facility permit applications under §§281.30-281.32of this title (relating to Applicability of Prioritization Procedurefor Commercial Hazardous Waste; Definitions; Prioritization Process)].
§281.5.Application for Wastewater Discharge,Underground Injection, Municipal Solid Waste, Radioactive Material,Hazardous Waste, and Industrial Solid Waste Management Permits.
(a) Except as provided by §305.48 ofthis title (relating to Additional Contents of Applications for WastewaterDischarge Permits), applications for wastewater discharge includingsubsurface area drip dispersal systems, underground injection, municipalsolid waste, radioactive material, hazardous waste and industrialsolid waste management permits must include:
(1) complete application form(s), signed and notarized,and appropriate copies provided;
(2) the payment of fees, if applicable;
(3) the verified legal status of the applicant;
(4) the signature of the applicant, checked against commission [agency] requirements;
(5) the attachment of technical reports and supportingdata required by the application;
(6) a list of adjacent and potentially affected landownersand their addresses along with a map locating the property owned bythese persons; and
(7) any other information as the executive directoror the commission may reasonably require.
(b)A person submitting an applicationunder subsection (a) of this section shall also submit an accurateduplicate of the application in electronic format.
§281.22.Referral to Commission.
(a) When administrative and technical review has beencompleted, the application shall be forwarded to the commission forfiling and setting. For the purpose of providing adequate notice,the executive director shall include a recommendation to the commissionof the area wherein the application, if granted, would have a potentialimpact, and a mailing list of persons who may be affected. For applicationsfor radioactive material licenses, upon completion of technical review,the executive director shall forward the draft license, technicalsummary, compliance summary, and, if applicable, the environmentalanalysis to the chief clerk for public notice, or shall forward arecommendation to deny the license.
(b) For applications involving hazardous waste or aninjection well, the commission shall not issue a permit before receivinga complete application for a permit. For underground injection wells,an application for a permit is complete when the executive directorreceives an application form and any supplemental information whichare completed to his or her satisfaction. For underground injectionwells, the completeness of any application for a permit shall be judgedindependently of the status of any other permit application or permitfor the same facility or activity. However, a facility may be eligiblefor a permit by rule or may be subject to an emergency order.
[(c)After an application under thissection for a permit authorizing proposed commercial hazardous wastemanagement units providing new or previously unpermitted capacityis determined by the executive director to be technically complete,the executive director shall prepare a summary of the most recentinformation on the need for the proposed processing or disposal technology,including the following information:]
[(1)estimated current statewide capacity for the technology;]
[(2)projected estimated statewide demand from themost recent Needs Assessment, as defined under §281.31 of thistitle (relating to Definitions);]
[(3)regional factors documented by the applicant ifa regional need has been demonstrated; and]
[(4)any other waste management information deemedrelevant by the executive director.]
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Officeof the Secretary of State on May 13, 2024.
TRD-202402102
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER A. APPLICATIONS PROCESSINGStatutory Authority
The repeals are proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; the Administrative Procedures Actunder Texas Government Code, Chapter 2001, which authorizes the commissionas a state agency to adopt rules pursuant to the rulemaking process;Texas Government Code, §2001.039 and 1 Texas Administrative Code,Chapter 91, Subchapter D, which authorize the commission as a stateagency to review and consider for readoption each of its rules notlater than the fourth anniversary of the date on which the rule takeseffect and every four years after that date; Texas Health and SafetyCode (THSC), §361.011, which establishes the commission’sjurisdiction over the regulation, management, and control of municipalsolid waste; THSC, §361.017, which establishes the commission'sjurisdiction over the regulation, management, and regulation and controlof industrial; solid waste and hazardous municipal waste; THSC, §361.024,which authorizes the commission to adopt rules consistent with thegeneral purposes of the Solid Waste Disposal Act in accordance withthe Administrative Procedures Act; THSC, §361.061, which authorizesthe commission to issue permits authorizing facilities for the storage,processing and disposal of industrial solid waste; and THSC, §361.064,which requires the commission to prescribe the form of, requirementsand procedures for a permit application for a solid waste facility.The proposed repeals would repeal three sections, §§281.30- 281.32, that the commission identified as obsolete during the quadrennialrule review of Chapter 281 (44 TexReg 7717). These sections implementedTHSC, §361.0232 and §361.0871(c) which were enacted by SB1099, 72nd Texas legislature, 1991, and subsequently repealed by HouseBill 7, 78th Texas Legislature, 2003, Third Called Session.
§281.30.Applicability of PrioritizationProcedure for Commercial Hazardous Waste Management Facility PermitApplications.
§281.31.Definitions.
§281.32.Prioritization Process.
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402103
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
CHAPTER 328. WASTE MINIMIZATION AND RECYCLINGThe Texas Commission on Environmental Quality (TCEQ, agency,or commission) proposes the amendment to §328.7; and new §§328.301- 328.304.
Background and Summary of the Factual Basis for the Proposed Rules
The commission proposes this rulemaking to implement House Bill(HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Healthand Safety Code (THSC), §361.0151 (Recycling), §361.421(Definitions), and §361.427 (Specifications for Recycled Products);and added §361.4215 (Mass Balance Attribution). These statutoryenactments require the commission to promulgate rules to: 1) identifythird-party certification systems for mass balance attribution thatmay be used for the purposes of the definitions of "recycled material"and "recycled plastics" in THSC, §361.421(6) and §361.421(6-a),respectively; and 2) establish guidelines by which a product is eligibleto be considered a recycled product in accordance with THSC, §361.4215and §361.427.
As part of this rulemaking, the commission is proposing revisionsto 30 Texas Administrative Code (TAC) Chapter 281, Applications Processing;Chapter 330, Municipal Solid Waste; and Chapter 335, Industrial SolidWaste and Municipal Hazardous Waste, concurrently in this issue ofthe Texas Register.
Section by Section Discussion
Subchapter B: Recycling, Reuse, and Materials Recovery Goals and Rates
§328.7, Definitions of Terms and Abbreviations
The commission proposes to amend §328.7(4) by replacing existing subparagraphs (A) - (H) with clauses (i) - (viii) in subparagraph (A) and adding clauses (ix) - (xii) to update the definition of "Recycled product" to reference current Environmental Protection Agency Comprehensive Procurement Guidelines and Recovered Materials Advisory Notices. The definition would also be revised by reorganizing text in current subparagraph (H) under new subparagraph (B), by updating references to the Federal Trade Commission and the American Society for Testing Materials guidelines, and adding new subparagraph (C) to exclude a product sold as fuelfrom the definition. The amendments would implement HB 3060 whichamended the definition of "Recycled product" in THSC, §361.421by replacing the phrase "which meets the requirements for recycledmaterial content as prescribed by" with the phrase "that is eligibleto be considered a recycled product under," and by clarifying thatthe term does not include a product sold as fuel.
Subchapter L: Third-party CertificationSystems for Mass Balance Attribution
§328.301, Purpose and Applicability
The commission proposes new §328.301 to establish the purposeand applicability of the subchapter.
§328.302, Definitions
The commission proposes new §328.302 to implement HB 3060by adopting definitions of the terms "Recycled material," "Recycledplastics," and "Recycling" to implement the definitions in THSC, §361.421;and adopting definitions of the terms "Mass balance attribution,"and "Third-party certification system" to implement §361.4215.
§328.303, Third-Party CertificationSystems for Mass Balance Attribution
The commission proposes new §328.303 to implement THSC, §361.4215,as promulgated by HB 3060, which requires the commission to adoptrules to identify third-party mass balance attribution certificationsystems.
§328.304, Recycled Products
The commission proposes new §328.304 to implement THSC, §361.427,as amended by HB 3060. HB 3060 amended THSC, §361.427 by clarifyingthat the guidelines the commission establishes in rule for determiningwhether a product is eligible to be considered to be a recycled productmust be based on the percent of the total content of a product thatconsists of recycled material or the portion determined to consistof recycled material according to a third-party certification systemfor mass balance attribution, and by clarifying that post-use polymersbe included among recycled material in these guidelines.
Fiscal Note: Costs to State and Local Government
Kyle Girten, Analyst in the Budget and Planning Division, has determinedthat for the first five-year period the proposed rules are in effect,no costs are anticipated for the agency or for other units of stateor local government as a result of administration or enforcement ofthe proposed rule.
Public Benefits and Costs
Mr. Girten determined that for each year of the first five yearsthe proposed rules are in effect, the public benefit will be consistencywith state law, specifically HB 3060 from the 88th Regular LegislativeSession (2023). The proposed rulemaking is not anticipated to resultin costs to businesses and individuals. The proposed rulemaking providesan alternate approach to classify materials as "recycled products"(§328.303). The public may benefit from this rulemaking if moreplastic wastes and potentially other materials are diverted from disposalbecause of increased recycling.
Local Employment Impact Statement
The commission reviewed this proposed rulemaking and determinedthat a Local Employment Impact Statement is not required because theproposed rulemaking does not adversely affect a local economy in amaterial way for the first five years that the proposed rule is ineffect.
Rural Community Impact Assessment
The commission reviewed this proposed rulemaking and determinedthat the proposed rulemaking does not adversely affect rural communitiesin a material way for the first five years that the proposed rulesare in effect. The amendments would apply statewide and have the sameeffect in rural communities as in urban communities.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businessesdue to the implementation or administration of the proposed rule forthe first five-year period the proposed rules are in effect.
Small Business Regulatory Flexibility Analysis
The commission reviewed this proposed rulemaking and determinedthat a Small Business Regulatory Flexibility Analysis is not requiredbecause the proposed rule does not adversely affect a small or micro-businessin a material way for the first five years the proposed rules arein effect.
Government Growth Impact Statement
The commission prepared a Government Growth Impact Statement assessmentfor this proposed rulemaking. The proposed rulemaking does not createor eliminate a government program and will not require an increaseor decrease in future legislative appropriations to the agency. Theproposed rulemaking does not require the creation of new employeepositions, eliminate current employee positions, nor require an increaseor decrease in fees paid to the agency. The proposed rulemaking amendsan existing regulation to be consistent with state law, and it doesnot create, expand, repeal, or limit an existing regulation. The proposedrulemaking does not increase or decrease the number of individualssubject to its applicability. During the first five years, the proposedrule should not impact positively or negatively the state’seconomy.
Draft Regulatory Impact Analysis Determination
The commission reviewed the proposed rulemaking in light of theregulatory analysis requirements of Texas Government Code, §2001.0225and determined that the rulemaking is not subject to Texas GovernmentCode, §2001.0225. Texas Government Code, §2001.0225 appliesto a "Major environmental rule" which is defined in Texas GovernmentCode, §2001.0225(g)(3) as a rule with a specific intent "to protectthe environment or reduce risks to human health from environmentalexposure and that may adversely affect in a material way the economy,a sector of the economy, productivity, competition, jobs, the environment,or the public health and safety of the state or a sector of the state."
First, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because its specific intent is notto protect the environment or reduce risks to human health from environmentalexposure. The specific intent of the proposed rulemaking is to promulgaterules to: 1) identify third-party certification systems for mass balanceattribution that may be used for the purposes of the definitions of"recycled material" and "recycled plastics" in THSC, §361.421(6)and §361.421(6-a), respectively; and 2) establish guidelinesby which a product is eligible to be considered a recycled productin accordance with THSC, §361.4215 and §361.427.
Second, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because the proposed rules will notadversely affect in a material way the economy, a sector of the economy,productivity, competition, jobs, the environment, or the public healthand safety of the state or a sector of the state. It is not anticipatedthat the cost of complying with the proposed rules would be significantwith respect to the economy as a whole or with respect to a sectorof the economy; therefore, the proposed rulemaking would not adverselyaffect in a material way the economy, a sector of the economy, productivity,competition, jobs, the environment, or the public health and safetyof the state or a sector of the state.
Finally, the proposed rulemaking does not meet any of the fourapplicability requirements for a "Major environmental rule" listedin Texas Government Code, §2001.0225(a). Texas Government Code,§2001.0225 only applies to a major environmental rule, the resultof which is to: 1) exceed a standard set by federal law, unless therule is specifically required by state law; 2) exceed an express requirementof state law, unless the rule is specifically required by federallaw; 3) exceed a requirement of a delegation agreement or contractbetween the state and an agency or representative of the federal governmentto implement a state and federal program; or 4) adopt a rule solelyunder the general powers of the agency instead of under a specificstate law. This proposed rulemaking does not meet any of the fourpreceding applicability requirements.
This proposed rulemaking does not meet the statutory definitionof a "Major environmental rule," nor does it meet any of the fourapplicability requirements for a "Major environmental rule." Therefore,this rulemaking is not subject to Texas Government Code, §2001.0225.
The commission invites public comment regarding the Draft RegulatoryImpact Analysis Determination during the public comment period. Writtencomments on the Draft Regulatory Impact Analysis Determination maybe submitted to the contact person at the address listed under theSubmittal of Comments section of this preamble.
Takings Impact Assessment
The commission has prepared a takings impact assessment for theseproposed rules in accordance with Texas Government Code, §2007.043.The commission's preliminary assessment is that implementation ofthese proposed rules would not constitute a taking of real property.The commission proposes this rulemaking for the purpose of promulgatingrules to: 1) identify third-party certification systems for mass balanceattribution that may be used for the purposes of the definitions of"recycled material" and "recycled plastics" in THSC, §361.421(6)and §361.421(6-a), respectively; and 2) establish guidelinesby which a product is eligible to be considered a recycled productin accordance with THSC, §361.4215 and §361.427.
The commission's analysis indicates that Texas Government Code,Chapter 2007, does not apply to these proposed rules because thisis an action that is reasonably taken to fulfill an obligation mandatedby state law, which is exempt under Texas Government Code, §2007.003(b)(4).HB 3060 amended THSC, §361.0151 (Recycling), §361.421 (Definitions),and §361.427 (Specifications for Recycled Products); and added§361.4215 (Mass Balance Attribution). These statutory enactmentsrequire the commission promulgate rules to: 1) identify third-partycertification systems for mass balance attribution that may be usedfor the purposes of the definitions of "recycled material" and "recycledplastics" in THSC, §361.421(6) and §361.421(6-a), respectively;and 2) establish guidelines by which a product is eligible to be considereda recycled product in accordance with THSC, §361.4215 and §361.427,which provides a unilateral expectation that does not rise to thelevel of a recognized interest in private real property. Therefore,Texas Government Code, Chapter 2007 does not apply to these proposedrule changes because the proposed rulemaking falls within the exceptionunder Texas Government Code, §2007.003(b)(4).
Further, the commission determined that promulgation of these proposedrules would be neither a statutory nor a constitutional taking ofprivate real property. Specifically, there are no burdens imposedon private real property under the rulemaking because the proposedrules neither relate to, nor have any impact on, the use or enjoymentof private real property, and there would be no reduction in propertyvalue as a result of these rules. Therefore, the proposed rules wouldnot constitute a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the proposed rulemaking and found the proposalis a rulemaking identified in the Coastal Coordination Act ImplementationRules, 31 TAC §505.11(b)(4) relating to rules subject to theCoastal Management Program, and will, therefore, require that goalsand policies of the Texas Coastal Management Program (CMP) be consideredduring the rulemaking process.
The commission reviewed this rulemaking for consistency with theCMP goals and policies in accordance with the regulations of the CoastalCoordination Advisory Committee and determined that the amendmentsare consistent with CMP goals and policies because the rulemakingwould not have direct or significant adverse effect on any coastalnatural resource areas; would not have a substantive effect on commissionactions subject to the CMP; and promulgation and enforcement of theamendments would not violate (exceed) any standards identified inthe applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Announcement of Hearing
The commission will hold a hybrid virtual and in-person publichearing on this proposal in Austin on June 20, 2024, at 10:00 a.m.in Building F, Room 2210, at the commission's central office locatedat 12100 Park 35 Circle. The hearing is structured for the receiptof oral or written comments by interested persons. Individuals maypresent oral statements when called upon in order of registration.Open discussion will not be permitted during the hearing; however,commission staff members will be available to discuss the proposal30 minutes prior to the hearing at 9:30 a.m.
Individuals who plan to attend the hearing virtually and want toprovide oral comments and/or want their attendance on record mustregister by June 14, 2024. To register for the hearing, please emailRules@tceq.texas.gov and provide the following information: your name,your affiliation, your email address, your phone number, and whetheror not you plan to provide oral comments during the hearing. Instructionsfor participating in the hearing will be sent on June 18, 2024, tothose who register for the hearing.
For the public who do not wish to provide oral comments but wouldlike to view the hearing may do so at no cost at:
https://teams.microsoft.com/l/meetup-join/19%3ameeting_Zjg1MDI0YmYtNGYwYi00ZWU4LTg5MWYtMDg3MTBiNTc1ODc4%40thread.v2/0?context=%7B%22Tid%22%3A%22871a83a4-a1ce-4b7a-8156-3bcd93a08fba%22%2C%22Oid%22%3A%22e74a40ea-69d4-469d-a8ef-06f2c9ac2a80%22%2C%22IsBroadcastMeeting%22%3Atrue%2C%22role%22%3A%22a%22%7D&btype=a&role=a
Persons who have special communication or other accommodation needswho are planning to attend the hearing should contact Sandy Wong,Office of Legal Services at (512) 239-1802 or 1-800-RELAY-TX (TDD).Requests should be made as far in advance as possible.
Submittal of Comments
Written comments may be submitted to Gwen Ricco, MC 205, Officeof Legal Services, Texas Commission on Environmental Quality, P.O.Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic commentsmay be submitted at: https://tceq.commentinput.com/comment/search.File size restrictions may apply to comments being submitted via theTCEQ Public Comments system. All comments should reference Rule ProjectNumber 2023-135-330-WS. The comment period closes at 11:59 p.m. onJune 25, 2024. Please choose one of the methods provided to submityour written comments.
Copies of the proposed rulemaking can be obtained from the commission'swebsite at https://www.tceq.texas.gov/rules/propose_adopt.html. Forfurther information, please contact Jarita Sepulvado, Waste PermitsDivision, (512) 239-4413.
SUBCHAPTER B. RECYCLING, REUSE, AND MATERIALS RECOVERY GOALS AND RATES
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; the Administrative Procedures Actunder Texas Government Code, Chapter 2001, which authorizes the commissionas a state agency to adopt rules pursuant to the rulemaking process;Texas Health and Safety Code (THSC), §361.011, which grants thecommission authority over municipal solid waste; THSC, §361.017,which grants the commission jurisdiction over industrial solid wasteand hazardous municipal waste; THSC, §361.024, which authorizesthe commission to adopt rules consistent with the general purposesof the Solid Waste Disposal Act; THSC, §361.0151, which requiresthe commission to base its goals or requirements for recycling orthe use of recycled materials on the definitions and principles establishedby Subchapter N, THSC, §§361.421 through 361.431; THSC,§361.022 and §361.023, which set public policy in the managementof municipal solid waste and hazardous waste to include reuse or recyclingof waste; THSC, §361.041, which conditionally excludes post-usepolymers and recoverable feedstock from classification as solid wastewhen are converted using pyrolysis, gasification, solvolysis, or depolymerizationinto valuable raw materials, valuable intermediate products or valuablefinal products, that include plastic monomers, chemicals, waxes, lubricants,and chemical feedstocks; THSC, §361.078 which identifies thatTHSC Chapter 361 Subchapter B does not abridge, modify or restrictthe commission's authority to adopt rules issue permits and enforcethe terms of permits as necessary to maintain state authorizationof Texas' hazardous waste program; THSC, §361.119, which requiresthe commission to adopt rules and to adopt rules consistent with THSCChapter 361 to ensure that solid waste processing facilities are regulatedas solid waste facilities and not allowed to operate unregulated asrecycling facilities; THSC, §361.4215 which authorizes the commissionto identify third-party certification systems for mass balance attributionthat may be used for the purposes of THSC, §361.421(6) and (6-a);THSC, §361.425 which provides that the commission shall adoptrules for administering governmental entity recycling programs; THSC,§361.426, which provides that the commission shall adopt rulesfor administering governmental entity preferences for recycled products;and THSC, §361.427 which authorizes the commission to promulgaterules to establish guidelines by which a product is eligible to beconsidered a recycled product.
The proposed amendments to §328.302 would implement HouseBill (HB) 3060, 88th Texas Legislature, 2023, by adding the definitionsof "Recycled material," "Recycled plastics," and "Recycling" so thatthey are consistent with the definitions under THSC, §361.421.The proposed amendments to §328.302 would also implement HB 3060by adding the definitions of "Recycled product" and "Third-party certificationsystem" so that they are consistent with the definitions under THSC,§361.427 and §361.4215, respectively.
§328.7.Definitions of Terms and Abbreviations.
The following words and terms, when used in this subchaptershall have the following meanings, unless the context clearly indicates otherwise.
(1) Base year--The year 1990 used as a reference forrecycling credit limits and for determining the amount of waste reducedat the source.
(2) Municipal sludge--Any solid, semisolid, or liquidwaste generated from a municipal wastewater treatment plant, watersupply treatment plant, or any other such waste having similar characteristicsand effect, exclusive of the treated effluent from a wastewater treatment plant.
(3) Net tons of waste exported--The difference betweenthat portion of the municipal waste stream generated within specificgeographic boundaries and exported for disposal and that portion whichis generated outside the boundaries and imported for disposal duringa specified time period.
(4) Recycled product--
(A) A product which conforms to the minimumcontent of recycled material as specified in the Comprehensive ProcurementGuidelines (CPG) and the Recovered Materials Advisory Notice (RMAN)published by the Environmental Protection Agency (EPA). The followingis a list of the EPA guidelines:
(i) [(A)] CPG I, as amended throughMay 1, 1995, at 60 Federal Register (FR) 21370;
(ii) [(B)] RMAN I, as amendedthrough May 1, 1995, at 60 FR 21386;
(iii) [(C)] RMAN (update), asamended through May 29, 1996, at 61 FR 26985;
(iv)[(D)] CPG II, as amendedthrough November 13, 1997, at 62 FR 60962;
(v) [(E)] RMAN II, as amendedthrough November 13, 1997, at 62 FR 60975;
(vi)[(F)] RMAN (update), asamended through June 8, 1998, at 63 FR 31214;
(vii)[(G)] CPG III, as amendedthrough January 19, 2000, at 65 FR 3069;
(viii)[(H)] RMAN III, as amendedthrough January 19, 2000, 65 FR 3082;
(ix)CPG IV, as amended through April30, 2004, at 69 FR 24028;
(x)RMAN IV, as amended through April 30, 2004, at 69 FR 24039;
(xi)CPG V, as amended through September 14, 2007, at 72 FR 52475; and
(xii) RMAN V, as amended through September 14, 2007, at 72 FR 52561.
(B) For products for which no EPA guidelines exist, states may use guidelines from the Federal Trade Commission (FTC), or the American Society for Testing Materials (ASTM) for those products for which FTC or ASTM guidelines exist. The FTC guideline is found in 16 Code of Federal Regulations Part 260 and 16 CFR §260.13 [Code of Federal Regulations, Title 16, Volume 1, Parts 0 to 999, Revised January 1, 1999]. The ASTM guidelinesare available online at ASTM's website, www.astm.org [guidelinecan be found in the 1999 Annual Book of ASTM Standards, Volumes 1-15].
(C) The term does not include a productsold as fuel.
(5) Recycling rate--That percentage of the municipalsolid waste stream which is recovered or diverted for recycling.
(6) Source-reduced waste--A material or product, previouslyor typically entering the municipal solid waste stream, which hasbeen prevented from entering that stream through source reduction.
(7) Source reduction--Any action that averts the discardingof products or materials by reducing material use or waste at thesource, including redesigning products or packaging so that less materialis used, voluntary or imposed behavioral changes in the use and reuseon site of materials or products, or increasing durability or reusabilityof materials or products.
(8) Total municipal solid waste stream--The sum ofthe state's total municipal solid waste that is disposed of as solidwaste, measured in tons, and the total number of tons of recyclablematerial that has been diverted or recovered from the total municipalsolid waste and recycled.
(9) Waste stream reduction rate--That percentage ofthe municipal solid waste stream which is source-reduced or recoveredor diverted for recycling.
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Officeof the Secretary of State on May 13, 2024.
TRD-202402104
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER L. THIRD-PARTY CERTIFICATION SYSTEMS FOR MASS BALANCE ATTRIBUTIONStatutory Authority
The new sections are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state;§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; the AdministrativeProcedures Act under Texas Government Code, Chapter 2001, which authorizesthe commission as a state agency to adopt rules pursuant to the rulemaking process; Texas Health and Safety Code (THSC), §361.011, which grants the commission authority over municipal solid waste; THSC, §361.017, which grants the commission jurisdiction overindustrial solid waste and hazardous municipal waste; THSC, §361.024,which authorizes the commission to adopt rules consistent with thegeneral purposes of the Solid Waste Disposal Act; THSC, §361.0151,which requires the commission to base its goals or requirements forrecycling or the use of recycled materials on the definitions andprinciples established by Subchapter N, THSC, §§361.421through 361.431; THSC, §361.022 and §361.023, which set public policy in the management of municipal solid waste and hazardouswaste to include reuse or recycling of waste; THSC, §361.041,which conditionally excludes post-use polymers and recoverable feedstockfrom classification as solid waste when are converted using pyrolysis,gasification, solvolysis, or depolymerization into valuable raw materials,valuable intermediate products or valuable final products, that includeplastic monomers, chemicals, waxes, lubricants, and chemical feedstocks;THSC, §361.078 which identifies that THSC Chapter 361 SubchapterB does not abridge, modify or restrict the commission's authorityto adopt rules issue permits and enforce the terms of permits asnecessary to maintain state authorization of Texas' hazardous wasteprogram; THSC, §361.119, which requires the commission to adoptrules and to adopt rules consistent with THSC Chapter 361 to ensurethat solid waste processing facilities are regulated as solid wastefacilities and not allowed to operate unregulated as recycling facilities;THSC,, §361.4215 which authorizes the commission to identifythird-party certification systems for mass balance attribution thatmay be used for the purposes of THSC, §361.421(6) and (6)(a);THSC, §361.425 which provides that the commission shall adoptrules for administering governmental entity recycling programs; THSC,§361.426, which provides that the commission shall adopt rulesfor administering governmental entity preferences for recycled products; and THSC, §361.427 which authorizes the commission to promulgate rules to establish guidelines by which a product is eligible to be considered a recycled product.
The proposed new §328.302 would implement House Bill (HB)3060, 88th Texas Legislature, 2023, by adding the definitions of"Recycled material." "Recycled plastics." And "Recycling." so thatthey are consistent with the definitions under THSC, §361.421.The proposed new §328.302 would also implement HB 3060 by addingthe definitions of "Recycled product" and "Third-party certificationsystem" so that they are consistent with the definitions under THSC,§361.427 and §361.4215, respectively.
§328.301.Purpose and Applicability.
(a) Purpose. The purpose of this subchapter is to:
(1) establish guidelines by which a product is eligibleto be considered a recycled product;
(2) identify what is not eligible to be considereda recycled product; and
(3) identify third-party certification systems formass balance attribution to certify:
(A) "Recycled material";
(B) "Recycled plastics"; and
(C) the portion of the total content of a product thatconsists of recycled material.
(b) Applicability. This subchapter is applicable todetermining that a product is eligible to be considered a recycledproduct and third-party certification systems for mass balance attribution.
§328.302.Definitions.
The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.
(1) Mass balance attribution--A chain of custody accounting methodology with rules defined by a "Third-party certification system" that enables the attribution of "Recycled material" and "Recycled plastics," as those terms are defined in this section, to a "Recycled product," as described in §328.304 of this title (relating to Recycled Products).
(2) Recycled material--Materials, goods, or products that consist of recovered "Recyclable material," as defined in §330.3 of this title (relating to Definitions), materials derived from "Recoverable feedstocks" or "Post-use polymers" as those terms are defined in§330.3 of this title, or postconsumer waste, industrial waste,or hazardous waste which may be used in place of a raw or virginmaterial in manufacturing a new product or that are certified undera "Third-party certification system" for "Mass balance attribution,"as those terms are defined in this section. The term includes "Recycledplastics" as defined in this section.
(3) Recycled plastics--Products that are produced from:
(A)mechanical recycling of post-use polymers; or
(B)nonmechanical recycling of "Recoverable feedstocks"or "Post-use polymers" as those terms are defined in §330.3 of this title, that are certified under a "Third-party certificationsystem" for "Mass balance attribution," as those terms are definedin this section.
(4)Recycling--A process by which materials that haveserved their intended use or are scrapped, discarded, used, surplus,or obsolete are collected, separated, or processed and returned touse in the form of raw materials or feedstocks used in the manufactureof new products. The term includes the conversion of post-use polymersand recoverable feedstocks through pyrolysis, gasification, solvolysis, or depolymerization, but does not include waste-to-energy processes or incineration of plastics in an incinerator as defined in §335.1 of this title (relating to Definitions).
(5)Third-party certification system--An internationalor multinational third-party certification system that consists ofa set of rules to implement "Mass balance attribution" approachesfor attribution of "Recycled material" to a "Recycled product" asthese terms are defined in this section.
§328.303.Third-Party Certification Systems for Mass Balance Attribution.
(a) The commission shall:
(1) maintain a list that identifies third-party certificationsystems for mass balance attribution; and
(2) provide a copy of that list to any person on request.
(b) Recyclable materials, as defined in §330.3of this title (relating to Definitions), converted to fuels may notbe considered for mass balance attribution for the purpose of thissubchapter.
§328.304.Recycled Products.
(a) A product is eligible to be considered a recycledproduct when it conforms with the minimum content of recycled materialas specified in the Comprehensive Procurement Guidelines (CPG) andthe Recovered Materials Advisory Notice (RMAN) published by the Environmental Protection Agency (EPA) as described in §328.7(4) of this title (relating to Definitions of Terms and Abbreviations).
(b) Manufacturers may use a third-party certificationsystem for mass balance attribution as identified under §328.303of this title (relating to Third-party Certification Systems forMass Balance Attribution) to identify the portion of the total contentof a product which consists of recycled material and recycled plastics.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402105
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
CHAPTER 330. MUNICIPAL SOLID WASTEThe Texas Commission on Environmental Quality (TCEQ, agency,or commission) proposes the amendment to §§330.1, 330.3,330.5, 330.7, 330.13, 330.15, 330.23, 330.57, 330.63, 330.65, 330.69,330.103, 330.125, 330.147, 330.165, 330.171, 330.173, 330.217, 330.421,330.545, 330.613, 330.615, 330.633, 330.635, 330.951, 330.953, 330.954,330.959, 330.987, 330.991, 330.993, and 330.995.
Background and Summary of the Factual Basis for the Proposed Rules
Promulgation of House Bill 3060
The commission proposes this rulemaking to implement House Bill (HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Health and Safety Code (THSC), §361.003 (Definitions), §361.041 (Treatment of Post-Use Polymers and Recoverable Feedstocks as Solid Waste), and §361.119 (Regulation of Certain Facilities as Solid Waste Facilities). These statutory enactments expanded existing conditional exclusions from the definition of solid waste and regulations applicable to owners and operators of facilities that convert plastics and certain other nonhazardous recyclable material through pyrolysis and gasification to include the processes of depolymerization and solvolysis. The conditional exclusion is dependent upon two conditions being satisfied: (1) anadvanced recycling facility owner or operator must demonstrate thatthe primary function of the facility is to convert materials intoproducts for subsequent beneficial use; and (2) that all solid wastegenerated from converting the materials is disposed of at a solidwaste management facility authorized by the commission. The commission'sproposed implementation of HB 3060 in Chapter 330 would only be applicableto material that would be classified as nonhazardous municipal solidwaste if discarded. Implementation of provisions enacted by HB 3060applicable to material that would be classified as industrial solidwaste if discarded is proposed in Chapter 335 (Industrial Solid Wasteand Municipal Hazardous Waste).
Electronic Application Submittal
The commission also proposes this rulemaking to implement Senate Bill (SB) 1397, 88th Texas Legislature, 2023. SB 1397 enacted Texas Water Code (TWC), §5.1734 which requires the commission to post on its website an electronic copy of an administratively complete permit application and subsequent revisions to the application. The commission proposes to amend §330.57 to reduce the number of paper applications an applicant is required to submit from four to two, and replace the requirement for the applicant to post the initial application on a publicly accessible website with the requirement that the commission will post an electronic copy of the application on the commission's website.
Rule Citation Corrections
This rulemaking would make minor and non-substantive updates to incorrect rule citations or references.
Correcting use of and reference to Conditionally Exempt Small Quantity Generator which has changed to Very Small Quantity Generator
The commission proposes to correct the name of the lowest tier hazardous waste generator category which the Environmental Protection Agency (EPA) changed from "conditionally exempt small quantity generator" (CESQG) to "very small quantity generator" (VSQG) as part of the Hazardous Waste Generator Improvements Rule promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85732). The commission adopted the Generator Improvements Rulein Chapter 335 of this title effective February 3, 2022. The GeneratorImprovements Rule also introduced alternative standards applicableto VSQGs who generate greater amounts of hazardous waste during an"episodic event" as defined in 40 Code of Federal Regulations (CFR)Part 262, Subpart L. The commission adopted by reference in 30 TexasAdministrative Code (TAC) §335.60 the alternative standards applicableto VSQGs who generate hazardous waste during an "episodic event" (47TexReg 318). Under the new conditional exclusion, a VSQG may generategreater than a VSQG quantity of hazardous waste in a calendar monthduring an episodic event, manage the hazardous waste as regulatedhazardous waste, and avoid being up-classified to a small quantitygenerator or a large quantity generator by complying with all of theconditions for exclusion for an episodic event which among other thingsinclude consigning the hazardous waste to be transported by a registeredhazardous waste transporter accompanied by a manifest to an authorizedhazardous waste facility. A VSQG may qualify for up to two episodicevents per year. A second episodic event must be approved by the executivedirector. If a VSQG complies with the conditional exclusion for anepisodic event, hazardous waste generated during a month in whicha VSQG has an episodic event is classified as regulated hazardouswaste and is not authorized to be disposed of in any Type of ClassI Municipal Solid Waste (MSW) landfill. Additionally, delivery toa Type I MSW landfill of hazardous waste generated during a monthin which a VSQG has an episodic event is prohibited for the landfilloperator, the generator, and the transporter, would defeat the VSQG'sconditional exclusion, and result in the VSQG being up-classifiedto a small quantity generator or a large quantity generator.
As part of this rulemaking, the commission is also proposing amendmentsof 30 TAC Chapter 281 (Applications Processing); Chapter 328 (WasteMinimization and Recycling); and Chapter 335 (Industrial Solid Wasteand Municipal Hazardous Waste), concurrently in this issue of the Texas Register.
Section by Section Discussion
Subchapter A: General Information
§330.1, Purpose and Applicability
The commission proposes to amend §330.1(c) by revising the30 TAC §312.121 title to read "Purpose and Applicability." Thetitle was revised in a separate rulemaking (45 TexReg 2542).
§330.3, Definitions
The commission proposes to amend §330.3 to add four new definitionsas paragraphs in alphabetical order, remove two definition paragraphs,and renumber the subsequent definition paragraphs accordingly to accountfor these amendments.
The commission proposes §330.3(5) to add the definition of"Advanced recycling facility." This amendment would implement HB 3060by adding the definition of "Advanced recycling facility" to implementthe new definition of "Advanced recycling facility" in THSC, §361.003.
The commission proposes to amend renumbered §330.3(11)(A)and (B), the definition of "Asbestos-containing materials," by replacingthe citation to Appendix A, Subpart F in 40 CFR Part 763 with a referenceto Appendix E, Subpart E in 40 CFR Part 763. The appendix was movedin a federal rulemaking (60 FR 31917).
The commission proposes to amend renumbered §330.3(33), thedefinition of "Conditionally exempt small-quantity generator," byreplacing the definition with a reference to the definition of "Verysmall quantity generator" in this section. EPA changed the name ofthe lowest tier hazardous waste generator category from "conditionallyexempt small quantity generator" to "very small quantity generator"in the Hazardous Waste Generator Improvements Rule promulgated inthe Federal Register on November 28,2016 (81 FR 85732). This change would be consistent with the commission'sadoption of the Hazardous Waste Generator Improvements Rule in Chapter335 (47 TexReg 318). Additional information is available under theBackground and Summary of the Factual Basis for the Proposed Rules.
The commission proposes §330.3(39) to add the definition of"Depolymerization." This amendment would implement HB 3060 by addingthe definition of "Depolymerization" to implement with the definitionof "Depolymerization" in THSC, §361.003.
The commission proposes to amend renumbered §330.3(60) torevise the definition of "Gasification" to implement the definitionof "Gasification" in THSC, §361.003, as amended by HB 3060. Thedefinition of "Gasification" in §361.003 was amended to removecrude oil, diesel, gasoline, diesel blend stock, gasoline blend stock,home heating oil, ethanol, or other fuels from the list of valuableraw materials, valuable intermediate products, and valuable finalproducts that the process of gasification may convert recoverablefeedstocks into.
The commission proposes to delete existing §330.3(59) to removethe definition of "Gasification facility." This amendment would implementHB 3060 which removed the definition of "Gasification facility" fromTHSC, §361.003.
The commission proposes to amend renumbered §330.3(93), thedefinition of "Municipal solid waste landfill unit," by replacingthe reference to a conditionally exempt small-quantity generator withhazardous waste generated by a very small quantity generator not experiencingan episodic event. This change is necessary to conform with the commission'sadoption of EPA's Hazardous Waste Generator Improvements Rule promulgatedin the Federal Register on November28, 2016, (81 FR 85732) in Chapter 335 of this title (47 TexReg 318).Additional information is available under the Background and Summaryof the Factual Basis for the Proposed Rules.
The commission proposes to amend renumbered §330.3(118) torevise the definition of "Post-use polymers" to implement the definitionof "Post-use polymers" in THSC, §361.003, as amended by HB 3060,and clarify that post-use polymers would be classified as nonhazardouswaste if discarded. HB 3060 amended the definition of "Post-use polymers"in §361.003 by: replacing the term plastic polymers with theterm plastics; adding agricultural, preconsumer recovered materialsand postconsumer materials to the sources of plastics that post-usepolymers may be derived from; removing a list of wastes, medical waste,electronic waste, tires, and construction or demolition debris, thatwhen mixed with used polymers would not meet the definition of post-usepolymers; identifying that post-use polymers are sorted from solidwaste and other regulated waste and may contain residual amounts oforganic material; specifying that plastics mixed with solid wasteor hazardous waste onsite or during processing at an advanced recyclingfacility do not meet the definition of post-use polymers; identifyingthat post-use polymers are used or intended for use as a feedstockor for the production of feedstocks, raw materials, intermediate productsor final products using advanced recycling; and adding that post-usepolymers are processed or held prior to processing at an advancedrecycling facility.
The commission proposes to amend renumbered §330.3(121) torevise the definition of "Processing" consistent with the definitionof "Processing" in THSC, §361.003, as amended by HB 3060. Thedefinition of "Processing" in §361.003 was amended to excepttwo additional activities, "Solvolysis" and "Depolymerization," fromthe definition.
The commission proposes to amend renumbered §330.3(124) torevise the definition of "Pyrolysis" to implement the definition of"Pyrolysis" in THSC, §361.003, as amended by HB 3060. The definitionof "Pyrolysis" in §361.003 was amended to clarify which materialsare included and excluded in the list of valuable raw materials, valuableintermediate products, and valuable final products that the processof pyrolysis converts post-use polymers into. The amended definitionclarified this list by adding the term "polymers," and by removinga comma between the terms "plastic" and "monomer" which omitted "plastic"from the list; and by removing "crude oil, diesel, gasoline, dieseland gasoline blendstock, home heating oil, ethanol, or another fuel"from the list.
The commission proposes to delete existing §330.3(124) toremove the definition of "Pyrolysis facility." This amendment wouldimplement HB 3060 which removed the definition of "Pyrolysis facility"from THSC, §361.003.
The commission proposes to amend §330.3(127) to revise thedefinition of "Recoverable feedstock" to implement the definitionof "Recoverable feedstock" in THSC, §361.003, as amended by HB3060, and clarify that recoverable feedstock may be derived from recoverablenonhazardous waste, including nonhazardous municipal solid waste andother post-industrial nonhazardous waste. The definition of "Recoverablefeedstock" in §361.003 was amended to clarify that recoverablefeedstock may be processed to be used as feedstock in an advancedrecycling facility or through gasification and removing the term gasificationfacility, excluding materials and post-industrial wastes containingpost-use polymers that have been processed into a fuel, and includingpost-industrial waste the commission or EPA has determined are feedstocksand not solid waste.
The commission proposes to amend §330.3(128) to revise thedefinition of "Recyclable material" to implement the definition of"Recyclable material" in THSC, §361.421, as amended by HB 3060.
The commission proposes to amend §330.3(129) to revise thedefinition of "Recycling" to implement the definition of "Recycling"in THSC, §361.421, as amended by HB 3060. The definition of "Recycling"in §361.421 was revised by adding the terms "feedstocks" to thematerials used in the "manufacture" of new products, excluding applicabilityto incineration of plastics or waste-to-energy processes, and by addingthe conversion of post-use polymers and recoverable feedstocks throughsolvolysis or depolymerization.
The commission proposes to amend §330.3(133), the definitionof "Regulated hazardous waste," by replacing the reference to a conditionallyexempt small-quantity generator with a very small quantity generatornot experiencing an episodic event. This change is necessary to conformwith EPA's Hazardous Waste Generator Improvements Rule and would beconsistent with the commission's adoption of the Hazardous Waste GeneratorImprovements Rule in Chapter 335 of this title (47 TexReg 318). EPAintroduced a new conditional exclusion applicable to the lowest andmiddle tier of hazardous waste generator categories, very small quantitygenerator (VSQG) and small quantity generator (SQG). The new conditionalexemption for episodic events allows hazardous waste generators whocomply with the conjunctive requirements of the conditional episodicexclusion to avoid being up-classified as the next highest categoryof hazardous waste generator. A VSQG and a SQG who manage hazardouswaste generated during an episodic event must temporarily comply withthe conditions for exclusion for the generator category that wouldbe applicable if the generator were not taking advantage of the episodicexclusion. Such conditions for exclusion include packaging, placarding,and transporting the hazardous waste to an authorized hazardous wastefacility accompanied by a uniform hazardous waste manifest. Therefore,the exception from being classified as regulated hazardous waste thatwas previously applicable to hazardous waste generated by a conditionallyexempt small quantity generator (CESQG) is now only applicable tohazardous waste generated by a VSQG during a calendar month duringin which the VSQG did not generate hazardous waste from an episodicevent. Hazardous waste generated by a VSQG during a calendar monththat the VSQG generated hazardous waste from an episodic event mustbe managed as regulated hazardous waste and is not eligible to bemanaged as special waste, or to be disposed at a Type I MSW landfillauthorized to accept hazardous waste as special waste, or a Type IAE MSW landfill authorized to accept hazardous waste as special waste.
The commission proposes to amend §330.3(151)(D) to revisethe definition of "Solid waste" to implement revisions to the definitionof "Solid waste" in THSC, §361.003, as amended by HB 3060. HB3060 expanded the existing conditional exclusions from the definitionof "Solid waste" applicable to post-use polymers and recovered feedstocksprocessed through pyrolysis and gasification that are not classifiedas hazardous waste to also include post-use polymers and recoveredfeedstocks processed through solvolysis or depolymerization that arenot classified as hazardous waste. The conditional exclusion requiresthat post-use polymers and recovered feedstocks to be converted intoproducts for subsequent beneficial reuse and that solid waste generatedfrom converting the materials be disposed of in a solid waste managementfacility authorized by the commission under THSC, Chapter 361.
The commission proposes §330.3(153) to add the definitionof "Solvolysis." This amendment would implement HB 3060 by addinga new definition of "Solvolysis" to implement the new definition of"Solvolysis" in THSC, §361.003. The proposed definition wouldalso implement HB 3060 by clarifying that the conditional exclusionsfrom classification and regulation as solid waste applicable to plasticsrecycling is not applicable to a solvolysis manufacturing processthat produces fuel products.
The commission proposes to amend renumbered §330.3(155), thedefinition of "Special Waste," by replacing the reference in subparagraph(A) to conditionally exempt small-quantity generators with very smallquantity generators not experiencing an episodic event. This changeis necessary to conform with the commission's adoption of EPA's HazardousWaste Generator Improvements Rule in Chapter 335 of this title (47TexReg 318). Additional information is available under the Backgroundand Summary for the Proposed rules.
The commission proposes §330.3(177) to add the definitionof "Very small quantity generator" consistent with the commission'sadoption in 30 TAC §335.1 of EPA's new term describing the lowesttier hazardous waste generator category (47 TexReg 318). EPA changedthe name of the lowest tier hazardous waste generator category from"conditionally exempt small quantity generator" in 40 CFR §260.10(81 FR 85732). Additional information is available under the Backgroundand Summary for the Proposed rules.
§330.5, Classification of MunicipalSolid Waste Facilities
The commission proposes to amend §330.5(a) and (a)(2) by replacingthe reference to "conditionally exempt small quantity generators"in subsection (a), and "conditionally exempt small-quantity generator"in paragraph (a)(2) with "very small quantity generators" and "verysmall quantity generator" respectively. This change is necessary toconform with
EPA's Hazardous Waste Generator Improvements Rule and would beconsistent with the commission's adoption of the Hazardous Waste GeneratorImprovements Rule in Chapter 335 (47 TexReg 318). Additional informationis available under the Background and Summary for the Proposed rules.
The commission proposes to amend §330.5(a)(1) - (3) by removingthe reference to Chapter 330, Subchapter F. Subchapter F was determinedto be obsolete in the Chapter 330 Quadrennial Rules Review (44 TexReg6383) and subsequently repealed in a separate rulemaking (45 TexReg7605). MSW facilities remain subject to National Environmental LaboratoryAccreditation Conference (NELAC) standards.
The commission proposes to amend §330.5(a)(2) by removing§330.467 from the list of applicable design and operational standardsand properly listing the section titles. Section 330.467 does notexist and the inclusion of the section in the list of applicable designand operational standards was a typographical error.
The commission proposes to amend §330.5(a)(7) by replacingthe reference to §330.9(k) with §330.9(j). Subsection (k)was relettered in a separate rulemaking (41 TexReg 3735).
§330.7, Permit Required
The commission proposes to amend §330.7(e)(2) by revisingthe title for 30 TAC §106.494 to read "Non-commercial Incineratorsand Crematories." The title was revised in a separate rulemaking (43TexReg 4758).
The commission proposes to amend §330.7(i)(1)(E)(i) by replacingthe reference to 25 TAC Chapter 295, Subchapter C with 25 TAC Chapter296. The provisions from Chapter 295, Subchapter C were moved to Chapter296 in a separate rulemaking (46 TexReg 3880).
§330.13, Waste Management ActivitiesExempt from Permitting, Registration, or Notification
The commission proposes to amend §330.13(g) by replacing "agasification or pyrolysis facility" with "an advanced recycling facility,"updating the conditions for exclusion in §330.13(g)(1) and (2)by removing the requirement that the facility must keep records on-siteto demonstrate that the primary purpose of the facility is to convertmaterials into products "that have a resale value greater than thecost of converting the materials for beneficial use," adding thatthe facility must keep records on-site to demonstrate that the primarypurpose of the facility is to convert materials "into products forbeneficial use" and that "all solid waste generated from convertingmaterials has been disposed of at a disposal facility authorized bythe commission to accept and dispose of the solid waste, with theexception of small amounts of solid waste that may be inadvertentlyand unintentionally disposed of in another manner," and adding a listof information that must be included in such documentation. Theserevisions would implement revised THSC, §361.003 and §361.119(c-1),as amended by HB 3060.
§330.15, General Prohibitions
The commission proposes to amend §330.15(e)(5) by removingsubsection (f) from the 40 CFR §82.156 reference. The federalregulations regarding air conditioning and refrigeration equipmentwere revised in a federal rulemaking (81 FR 82272).
§330.23, Relationships with OtherGovernmental Entities
The commission proposes to amend §330.23(c) by replacing thereference to FAA Advisory Circular 150/5200.33A with the most recentversion of the document, FAA Advisory Circular 150/5200-33C, "HazardousWildlife Attractants on or near Airports," February 21, 2020.
Subchapter B: Permit and RegistrationApplication Procedures
§330.57, Permit and RegistrationApplications for Municipal Solid Waste Facilities
The commission proposes to amend §330.57(e)(1) by replacingthe requirement that an applicant provide four initial copies of anapplication with a requirement that an applicant provide two papercopies and one accurate duplicate in electronic format, and by removingthe phrase "up to 18." Additional information about the proposed changesto §330.57 is available under the Background and Summary of theFactual Basis for the Proposed Rules.
The commission proposes new §330.57(e)(2) to require the electroniccopy of the application to meet the formatting and drawing requirementsof the paper copy. The commission proposes to renumber the subsequentparagraphs accordingly to account for the added paragraph.
The commission proposes to amend §330.57(g)(1) by clarifyingpaper applications shall be submitted in binders.
The commission proposes to amend renumbered §330.57(g)(9)by replacing the sentence "Dividers and tabs are encouraged" withthe sentence "Use dividers and tabs."
The commission proposes to delete §330.57(i)(1) and renumberthe subsequent paragraphs accordingly to account for the deleted paragraph,including the replacement of paragraphs "(3), (4), and (5)" with "(2),(3), and (4)" in renumbered §330.57(i)(5). Additionally, theexception applicable to Type IAE and Type IVAE landfill facilitieswould be removed under the proposed requirement and these facilitieswill be required to submit an accurate duplicate of an applicationin an electronic format.
The commission proposes to amend renumbered §330.57(i)(1)by adding that the commission will post the electronic accurate duplicateof applications on its website and removing the requirement that applicantspost their identity and web address where the application is available.The commission's implementation of SB 1397 will replace the requirementthat owners and operators post applications on a publicly accessibleinternet website.
The commission proposes to amend renumbered §330.57(i)(4)by replacing the reference to 30 TAC §39.405(h)(2) with §39.426.The provisions from §39.405(h) were moved to §39.426 ina separate rulemaking (46 TexReg 5784).
§330.63, Contents of Part III ofthe Application
The commission proposes to amend §330.63(e)(3)(A) by replacingthe reference to §330.63(e)(2) with a reference to §330.63(e)(1)(B),the location of the provision related to regional geologic units.The reference to §330.63(e)(2) was made in error.
§330.65, Contents of Part IV of theApplication
The commission proposes to amend §330.65(b) by replacing thereference to 30 TAC §90.32 with §90.30, replacing the referenceto 30 TAC §90.36 with §90.31, and removing the referenceto the National Environmental Performance Track (NEPT). The provisionsfrom §90.32 and §90.36 were moved in a separate rulemaking(37 TexReg 5310), and the NEPT was terminated May 14, 2009.
§330.69, Public Notice for Registrations
The commission proposes to amend §330.69(b)(3) by replacingthe reference to 30 TAC §39.405(h)(2) with §39.426. Theprovisions from §39.405(h) were moved to §39.426 in a separaterulemaking (46 TexReg 5784).
Subchapter C: Municipal Solid Waste Collection and Transportation
§330.103, Collection and Transportation Requirements
The commission proposes to amend §330.103(b)(4) by revising the 30 TAC Chapter 312, Subchapter B title to read "Land Application And Storage of Biosolids and Domestic Septage." The title was revised in a separate rulemaking (45 TexReg 5784).
Subchapter D: Operational Standards for Municipal Solid Waste Landfill Facilities
§330.125, Recordkeeping Requirements
The commission proposes to amend §330.125(h) by replacing the reference to 30 TAC §305.70(k) with §305.70(l) because annual waste acceptance rate exceedance is not listed in §305.70(k).Public notice will continue to be required for modifications to increasewaste acceptance rates.
§330.147, Disposal of Large Items
The commission proposes to amend §330.147(c) by removing subsection(f) from the 40 CFR §82.156 reference. The federal regulationsregarding air conditioning and refrigeration equipment were revisedin a federal rulemaking (81 FR 82272).
§330.165, Landfill Cover
The commission proposes to amend §330.165(d) by replacingthe reference to 30 TAC §305.70(m) with §305.62(k). Theprovisions from §305.70(m) were moved to §305.62(k) in aseparate rulemaking (33 TexReg 4157).
§330.171, Disposal of Special Wastes
The commission proposes to amend §330.171(b)(2) by replacing"plan" with "Special Waste Management Plan" for clarity.
The commission proposes to amend §330.171(b)(2)(B) by replacingthe reference to 30 TAC §335.6(c) with §335.504, the accuratelocation for the hazardous waste determination requirement.
The commission proposes to amend §330.171(c)(6) by replacingthe reference to a "conditionally exempt small quantity generator"with "very small quantity generator" and by clarifying that the abilityto accept hazardous waste is not applicable to regulated hazardouswaste including hazardous waste generated by a VSQG during a calendarmonth in which the VSQG generated hazardous waste during an episodicevent. This change is necessary to conform with EPA's Hazardous WasteGenerator Improvements Rule and would be consistent with the commission'sadoption of the Hazardous Waste Generator Improvements Rule in Chapter335 (47 TexReg 318). Additional information about this proposed amendmentis available under the Background and Summary for the Proposed rules.
§330.173, Disposal of IndustrialWastes
The commission proposes to amend §330.173(b) by revising the30 TAC §335.10 title to read "Shipping and Reporting ProceduresApplicable to Generators of Hazardous Waste or Class 1 Waste." Thetitle was revised in a separate rulemaking (45 TexReg 3780).
The commission proposes to amend §330.173(g) by deleting anoutdated term "waste-shipping control ticket," and by requiring afacility operator to comply with the manifest requirements in §335.10(c)of this tile (relating to Shipping and Reporting Procedures Applicableto Generators of Hazardous Waste or Class 1 Waste) and in §335.15(1)and (3) of this title (relating to Recordkeeping and Reporting RequirementsApplicable to Owners and Operators of Treatment, Storage, or DisposalFacilities). The commission has updated Class 1 industrial waste manifestingrequirements to reflect current federal electronic manifest systemand user fees requirements applicable when a Uniform Hazardous WasteManifest accompanies shipments of state-regulated waste (47 TexReg318).
Subchapter E: Operational Standards for Municipal Solid Waste Storage and Processing Units
§330.217, Pre-Operation Notice
The commission proposes to amend §330.217(a)(1) by replacing the reference to §330.207(h) with §330.207(g). This amendment would correct a typographical error.
Subchapter J: Groundwater Monitoring and Corrective Action
§330.421, Monitor Well Construction Specifications
The commission proposes to amend §330.421(a)(2)(A) by replacing the reference to "National Science Foundation-certified polyvinyl chloride" with "National Sanitation Foundation-certified polyvinyl chloride." This amendment would correct a typographical error.
The commission proposes to amend §330.421(g) by replacingthe reference to 16 TAC §76.702 with 16 TAC §76.72, replacingthe reference to 16 TAC §76.1004 with 16 TAC §76.104, andidentifying the §76.104 title as "Technical Requirements--Standardsfor Capping and Plugging of Wells and Plugging Wells that PenetrateInjurious Water Zones." These revisions were made in a separate rulemaking(38 TexReg 1142).
Subchapter M: Location Restrictions
§330.545, Airport Safety
The commission proposes to amend §330.545(d) by removing thestatement "Guidelines regarding location of landfills near airportscan be found in Federal Aviation Administration Order 5200.5(A), January31, 1990." This amendment would remove a reference to obsolete guidancecancelled on July 1, 1997.
Subchapter N: Landfill Mining
§330.613, Sampling and Analysis Requirementsfor Final Soil Product
The commission proposes to amend §330.613(c), (f), and (h)by replacing the reference to Chapter 330, Subchapter F with a referenceto the NELAC standards. Subchapter F was repealed in a separate rulemaking(45 TexReg 7605), and MSW facilities remain subject to NELAC standards.
§330.615, Final Soil Product Gradesand Allowable Uses
The commission proposes to amend §330.615(b) by replacingthe reference to Chapter 330, Subchapter F with a reference to theNELAC standards. Subchapter F was repealed in a separate rulemaking(45 TexReg 7605), and MSW facilities remain subject to NELAC standards.
Subchapter O: Regional and Local SolidWaste Management Planning and Financial Assistance General Provisions
§330.633, Definitions of Terms andAbbreviations
The commission proposes to amend §330.633(3) by replacingthe reference to a "conditionally exempt small-quantity generator"with "very small quantity generator." This change is necessary toconform with EPA's Hazardous Waste Generator Improvements Rule. Additionalinformation about this proposed amendment is available under the Backgroundand Summary of the Factual Basis for the Proposed Rules.
§330.635, Regional and Local SolidWaste Management Plan Requirements
The commission proposes to amend §330.635(a)(2)(C)(v) by replacingthe reference to Texas Health and Safety Code (THSC) §363.0635with §363.064(10). The reference to THSC §363.0635 was atypographical error.
Subchapter T: Use of Land Over ClosedMunicipal Solid Waste Landfills
§330.951, Definitions
The commission proposes to amend §330.951(8) by replacingthe reference to a "conditionally exempt small-quantity generator"with "very small quantity generator." This change is necessary toconform with EPA's Hazardous Waste Generator Improvements Rule. Additionalinformation regarding this proposed amendment is available under theBackground and Summary of the Factual Basis for the Proposed Rules.
The commission proposes to further amend §330.951(8) by replacing"§330.3 (relating to Definitions)" with "40 Code of Federal Regulations§257.2." The reference to §330.3 was a typographical error.
§330.953, Soil Test Required beforeDevelopment
The commission proposes to amend §330.953(e) by replacingthe reference to 22 TAC §131.166 with 22 TAC §137.33. Theprovisions regarding sealing procedures were reorganized to 22 TACChapter 137 in a separate rulemaking (29 TexReg 4878).
§330.954, Development Permit, DevelopmentAuthorization, and Registration Requirements, Procedures, and Processing
The commission proposes to amend §330.954(c)(1), (2), and(3) by replacing the reference to 30 TAC §305.70(j)(6) with §305.70(k)(12).Section 305.70 was revised in a separate rulemaking (33 TexReg 4157).
§330.959, Contents of RegistrationApplication for an Existing Structure Built Over a Closed MunicipalSolid Waste Landfill Unit
The commission proposes to amend §330.959(b)(1) by replacingthe reference to §330.957(e) with §330.957(h). The referenceto §330.957(e) was a typographical error.
Subchapter U: Standard Air Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations
§330.987, Certification Requirements
The commission proposes to amend §330.987(e) by removing paragraph (1) and renumbering the remaining paragraphs. The provisions from §116.621 were replaced with Chapter 330, Subchapter U in a separate rulemaking (31 TexReg 2490).
§330.991, Technical and Operational Requirements for all Municipal Solid Waste Landfill Sites
The commission proposes to amend §330.991(a)(11)(E) by revising the 30 TAC §116.617 title to read "State Pollution Control Project Standard Permit." The title was revised in a separate rulemaking (31TexReg 516).
§330.993, Additional Requirementsfor Owners or Operators of Category 3 Municipal Solid Waste Landfills
The commission proposes to amend §330.993(a)(2) by replacingthe reference to 40 CFR §60.752(2)(b)(v) with §60.752(b)(2)(v).The reference to §60. 752(2)(b)(v) was a typographical error.
§330.995, Recordkeeping and ReportingRequirements for all Municipal Solid Waste Landfill Sites
The commission proposes to amend §330.995(d) by replacingthe reference to 40 CFR §63.1980 with §63.1981. The provisionsfrom §63.1980 were replaced by §63.1981 in a separate rulemaking(85 FR 17261).
Fiscal Note: Costs to State and Local Government
Kyle Girten, Analyst in the Budget and Planning Division, has determinedthat for the first five-year period the proposed rules are in effect,no costs are anticipated for the agency or for other units of stateor local government as a result of administration or enforcement ofthe proposed rule.
Public Benefits and Costs
Mr. Girten determined that for each year of the first five yearsthe proposed rules are in effect, the public benefit will be consistencyand compliance with state law, specifically SB 1397 and HB 3060 fromthe 88th Regular Legislative Session (2023). Additionally, the publicwill benefit from the update of citations or references of other federaland state rules.
The proposed rulemaking is not anticipated to result in costs tobusinesses and individuals. Entities that submit applications formunicipal solid waste permits will have reduced costs associated withprinting and submitting paper applications and will no longer haveany costs associated with posting applications on publicly accessibleinternet websites (§330.57). These cost reductions are expectedto be minimal.
Local Employment Impact Statement
The commission reviewed this proposed rulemaking and determinedthat a Local Employment Impact Statement is not required because theproposed rulemaking does not adversely affect a local economy in amaterial way for the first five years that the proposed rule is ineffect.
Rural Community Impact Assessment
The commission reviewed this proposed rulemaking and determinedthat the proposed rulemaking does not adversely affect rural communitiesin a material way for the first five years that the proposed rulesare in effect. The amendments would apply statewide and have the sameeffect in rural communities as in urban communities.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businessesdue to the implementation or administration of the proposed rule forthe first five-year period the proposed rules are in effect.
Small Business Regulatory Flexibility Analysis
The commission reviewed this proposed rulemaking and determinedthat a Small Business Regulatory Flexibility Analysis is not requiredbecause the proposed rule does not adversely affect a small or micro-businessin a material way for the first five years the proposed rules arein effect.
Government Growth Impact Statement
The commission prepared a Government Growth Impact Statement assessmentfor this proposed rulemaking. The proposed rulemaking does not createor eliminate a government program and will not require an increaseor decrease in future legislative appropriations to the agency. Theproposed rulemaking does not require the creation of new employeepositions, eliminate current employee positions, nor require an increaseor decrease in fees paid to the agency. The proposed rulemaking amendsan existing regulation to be consistent with state law, and it doesnot create, expand, repeal, or limit an existing regulation. The proposedrulemaking does not increase or decrease the number of individualssubject to its applicability. During the first five years, the proposedrule should not impact positively or negatively the state's economy.
Draft Regulatory Impact Analysis Determination
The commission reviewed the proposed rulemaking in light of theregulatory analysis requirements of Texas Government Code, §2001.0225and determined that the rulemaking is not subject to Texas GovernmentCode, §2001.0225. Texas Government Code, §2001.0225 appliesto a "Major environmental rule" which is defined in Texas GovernmentCode, §2001.0225(g)(3) as a rule with a specific intent "to protectthe environment or reduce risks to human health from environmentalexposure and that may adversely affect in a material way the economy,a sector of the economy, productivity, competition, jobs, the environment,or the public health and safety of the state or a sector of the state."
First, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because its specific intent is notto protect the environment or reduce risks to human health from environmentalexposure. The specific intent of the proposed rulemaking is to add,remove, revise, and renumber definitions in Chapter 330 so that theyare consistent with the commission's adoption of the Hazardous WasteGenerator Improvements Rule in Chapter 335 (47 TexReg 318) and thedefinitions in THSC Chapter 361 and to make minor and non-substantiveupdates to incorrect rule citations or references in Chapter 330.Therefore, the intent is not to protect the environment or reducerisks to human health from environmental exposure.
Second, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because the proposed rules will notadversely affect in a material way the economy, a sector of the economy,productivity, competition, jobs, the environment, or the public healthand safety of the state or a sector of the state. It is not anticipatedthat the cost of complying with the proposed rules will be significantwith respect to the economy as a whole or with respect to a sectorof the economy; therefore, the proposed rulemaking will not adverselyaffect in a material way the economy, a sector of the economy, productivity,competition, jobs, the environment, or the public health and safetyof the state or a sector of the state.
Finally, the proposed rulemaking does not meet any of the fourapplicability requirements for a "Major environmental rule" listedin Texas Government Code, §2001.0225(a). Texas Government Code,§2001.0225 only applies to a major environmental rule, the resultof which is to: 1) exceed a standard set by federal law, unless therule is specifically required by state law; 2) exceed an express requirementof state law, unless the rule is specifically required by federallaw; 3) exceed a requirement of a delegation agreement or contractbetween the state and an agency or representative of the federal governmentto implement a state and federal program; or 4) adopt a rule solelyunder the general powers of the agency instead of under a specificstate law. This proposed rulemaking does not meet any of the fourpreceding applicability requirements.
This proposed rulemaking does not meet the statutory definitionof a "Major environmental rule," nor does it meet any of the fourapplicability requirements for a "Major environmental rule." Therefore,this rulemaking is not subject to Texas Government Code, §2001.0225.
The commission invites public comment regarding the Draft RegulatoryImpact Analysis Determination during the public comment period. Writtencomments on the Draft Regulatory Impact Analysis Determination maybe submitted to the contact person at the address listed under theSubmittal of Comments section of this preamble.
Takings Impact Assessment
The commission has prepared a takings impact assessment for theseproposed rules in accordance with Texas Government Code, §2007.043.The commission's preliminary assessment is that implementation ofthese proposed rules would not constitute a taking of real property.The commission proposes this rulemaking for the purpose of adding,removing, revising, and renumbering definitions in Chapter 330 sothat they are consistent with the commission's adoption of the HazardousWaste Generator Improvements Rule in Chapter 335 (47 TexReg 318) andthe definitions in THSC Chapter 361 and making minor and non-substantiveupdates to incorrect rule citations or references in Chapter 330.
The commission's analysis indicates that Texas Government Code,Chapter 2007, does not apply to these proposed rules based upon anexception to applicability in Texas Government Code, §2007.003(b)(5).The proposed rules would add, remove, revise, and renumber definitionsin Chapter 330 so that they are consistent with the commission's adoptionof the Hazardous Waste Generator Improvements Rule in Chapter 335(47 TexReg 318) and the definitions in THSC Chapter 361 and to makeminor and non-substantive updates to incorrect rule citations or referencesin Chapter 330., which provides a unilateral expectation that doesnot rise to the level of a recognized interest in private real property.Therefore, Texas Government Code, Chapter 2007 does not apply to theseproposed rule changes because the proposed rulemaking falls withinthe exception under Texas Government Code, §2007.003(b)(5).
Further, the commission determined that promulgation of these proposedrules will be neither a statutory nor a constitutional taking of privatereal property. Specifically, there are no burdens imposed on privatereal property under the rulemaking because the proposed rules neitherrelate to, nor have any impact on, the use or enjoyment of privatereal property, and there will be no reduction in property value asa result of these rules. Therefore, the proposed rules will not constitutea taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the proposed rulemaking and found the proposalis a rulemaking identified in the Coastal Coordination Act ImplementationRules, 31 TAC §505.11(b)(4) relating to rules subject to theCoastal Management Program, and will, therefore, require that goalsand policies of the Texas Coastal Management Program (CMP) be consideredduring the rulemaking process.
The commission reviewed this rulemaking for consistency with theCMP goals and policies in accordance with the regulations of the CoastalCoordination Advisory Committee and determined that the amendmentsare consistent with CMP goals and policies because the rulemakingwill not have direct or significant adverse effect on any coastalnatural resource areas; will not have a substantive effect on commissionactions subject to the CMP; and promulgation and enforcement of theamendments will not violate (exceed) any standards identified in theapplicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Announcement of Hearing
The commission will hold a hybrid virtual and in-person publichearing on this proposal in Austin on June 20, 2024, at 10:00 a.m.in Building F, Room 2210, at the commission's central office locatedat 12100 Park 35 Circle. The hearing is structured for the receiptof oral or written comments by interested persons. Individuals maypresent oral statements when called upon in order of registration.Open discussion will not be permitted during the hearing; however,commission staff members will be available to discuss the proposal30 minutes prior to the hearing at 9:30 a.m.
Individuals who plan to attend the hearing virtually and want toprovide oral comments and/or want their attendance on record mustregister by June 14, 2024. To register for the hearing, please emailRules@tceq.texas.gov and provide the following information: your name,your affiliation, your email address, your phone number, and whetheror not you plan to provide oral comments during the hearing. Instructionsfor participating in the hearing will be sent on June 18, 2024, tothose who register for the hearing.
For the public who do not wish to provide oral comments but wouldlike to view the hearing may do so at no cost at:
https://teams.microsoft.com/l/meetup-join/19%3ameeting_Zjg1MDI0YmYtNGYwYi00ZWU4LTg5MWYtMDg3MTBiNTc1ODc4%40thread.v2/0?context=%7B%22Tid%22%3A%22871a83a4-a1ce-4b7a-8156-3bcd93a08fba%22%2C%22Oid%22%3A%22e74a40ea-69d4-469d-a8ef-06f2c9ac2a80%22%2C%22IsBroadcastMeeting%22%3Atrue%2C%22role%22%3A%22a%22%7D&btype=a&role=a
Persons who have special communication or other accommodation needswho are planning to attend the hearing should contact Sandy Wong,Office of Legal Services at (512) 239-1802 or 1-800-RELAY-TX (TDD).Requests should be made as far in advance as possible.
Submittal of Comments
Written comments may be submitted to Gwen Ricco, MC 205, Officeof Legal Services, Texas Commission on Environmental Quality, P.O.Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic commentsmay be submitted at: https://tceq.commentinput.com/comment/search.File size restrictions may apply to comments being submitted via theTCEQ Public Comments system. All comments should reference Rule ProjectNumber 2023-135-330-WS. The comment period closes at 11:59 p.m. onJune 25, 2024. Please choose one of the methods provided to submityour written comments.
Copies of the proposed rulemaking can be obtained from the commission'swebsite at https://www.tceq.texas.gov/rules/propose_adopt.html. Forfurther information, please contact Jarita Sepulvado, Waste PermitsDivision, (512) 239-4413.
SUBCHAPTER A. GENERAL INFORMATION
30 TAC §§330.1, 330.3, 330.5, 330.7, 330.13, 330.15, 330.23
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.1.Purpose and Applicability.
(a) The regulations promulgated in this chapter coveraspects of municipal solid waste (MSW) management and air emissionsfrom MSW landfills and transfer stations under the authority of thecommission and are based primarily on the stated purpose of TexasHealth and Safety Code, Chapter 361 and Chapter 382. The provisionsof this chapter apply to any person as defined in §3.2 of thistitle (relating to Definitions) involved in any aspect of the managementand control of MSW and MSW facilities including, but not limited to,storage, collection, handling, transportation, processing, and disposal.Furthermore, these regulations apply to any person that by contract,agreement, or otherwise arranges to process, store, or dispose of,or arranges with a transporter for transport to process, store, ordispose of, solid waste owned or possessed by the person, or by anyother person or entity. The comprehensive rule revisions in this chapteras adopted in 2006 (2006 Revisions) are effective 20 days after theyare filed with the Office of the Secretary of State.
(1) Permits and registrations, issued by the commissionand it predecessors, that existed before the 2006 Revisions becameeffective, remain valid until suspended or revoked except as expresslyprovided otherwise in this chapter. Facilities may operate under existingpermits and registrations subject to: requirements in the 2006 Revisions,which expressly supersede provisions contained in existing authorizationsor require revisions to existing authorizations; and those requirementsmandated by the United States Environmental Protection Agency in 40Code of Federal Regulations (CFR) Parts 257 and 258, as amended, whichimplement certain requirements of Resource Conservation and RecoveryAct, Subtitle D. For those federally mandated requirements and theequivalent state requirements, the effective dates listed in 40 CFRParts 257 and 258, as amended, shall apply. For those federally mandatedrequirements, the permittee is under an obligation to apply for apermit change in accordance with §305.62 of this title (relatingto Amendments) or §305.70 of this title (relating to MunicipalSolid Waste Permit and Registration Modifications), as applicable,to incorporate the required standard. The application shall be submittedno later than six months from the effective date of the required standard.
(2)Applications for new permits and major amendmentsto existing permits that are administratively complete and registrationapplications for which the executive director has completed a technicalreview, as of the effective date of the 2006 Revisions, shall be consideredunder the former rules of this chapter unless the applicant electsotherwise. Existing authorizations are subject to the 2006 Revisions,which expressly supersede provisions contained in existing authorizationsor require modifications of existing authorizations regardless ofwhether a major amendment is being considered for the same facilityunder the former rules. For new permits and major amendments to increasesolid waste disposal capacity, only complete applications (Parts I- IV), which are submitted and declared administratively completebefore the effective date of the 2006 Revisions, may be consideredunder existing Chapter 330 rules. Such applications are not subjectto §305.127(4)(B) of this title (relating to Conditions to beDetermined for Individual Permits) and the owner or operator mustsubmit the modifications required by the 2006 Revisions within oneyear after the commission's decision on the application has becomefinal and appealable, unless a longer period of time is specifiedin the rules.
(3)Authorizations, other than permits and registrations,that existed before the 2006 Revisions became effective shall complywith the 2006 Revisions within 120 days of the 2006 Revisions becomingeffective unless expressly provided otherwise in this chapter. Theseauthorizations include notifications, exemptions, permits by rule,and registrations by rule.
(4)Authorizations, other than permits and registrations,that had not been claimed or did not exist before the 2006 Revisionsbecame effective shall comply with the 2006 Revisions.
(5)Applications for modifications or for amendmentsthat do not increase solid waste disposal capacity that are filedbefore the 2006 Revisions become effective, or filed within 180 daysafter the 2006 Revisions become effective, are subject to the formerrules. Such applications are not subject to §305.127(4)(B) ofthis title, and the owner or operator must submit the modificationsrequired by the 2006 Revisions within 180 days after the effectivedate of the 2006 Revisions, unless a longer period of time is specifiedin the rules.
(b)The commission at its discretion, may include oneor more different types of units in a single permit if the units arelocated at the same facility with the exception of a facility authorizedby an MSW permit by rule. Persons shall seek separate authorizationsat a facility that qualifies for an MSW permit by rule.
(c)This chapter does not apply to any person thatprepares sewage sludge or domestic septage, fires sewage sludge ina sewage sludge incinerator, applies sewage sludge or domestic septageto the land, or to the owner/operator of a surface disposal site asapplicable under Chapter 312 of this title (relating to Sludge Use,Disposal, and Transportation); to sewage sludge or domestic septageapplied to the land or placed on a surface disposal site, to sewagesludge fired in a sewage sludge incinerator, to land where sewagesludge or domestic septage is applied to a surface disposal site orto a sewage sludge incinerator as applicable under Chapter 312 ofthis title; any person that transports sewage sludge, water treatmentsludge, domestic septage, chemical toilet waste, grit trap waste,or grease trap waste; to any person that applies water treatment sludgefor disposal in a land application unit, as defined in §312.121of this title (relating to Purpose and Applicability) [(relatingto Purpose, Scope, and Standards)] to water treatment sludgethat is disposed of in a land application unit, as defined in §312.121of this title. Persons managing such wastes shall comply with therequirements of Chapter 312 of this title.
(d)This chapter does not apply to any person thatcomposts MSW in accordance with the requirements of Chapter 332 ofthis title (relating to Composting), except for those persons thatmust apply for a permit in accordance with §332.3(a) of thistitle (relating to Applicability). Those persons that must submita permit application for a compost operation shall follow the applicablerequirements of Subchapter B of this chapter (relating to Permit andRegistration Application Procedures).
(e)This chapter does not apply to any person thatmanages medical waste in accordance with the requirements of Chapter326 of this title (relating to Medical Waste Management). Personsdisposing of medical waste at municipal solid waste landfills shallcomply with applicable provisions of this chapter. The medical wasteprovisions being relocated from this chapter to Chapter 326 of thistitle will remain in effect and continue to apply to permits, registrations,and registrations by rule issued under this chapter until the laterof two years from the effective date of Chapter 326 of this titleor until a final decision is made on a timely request for an authorizationto be updated to comply with Chapter 326 of this title. Permits, registrations,and registrations by rule issued under the existing Chapter 330 rulesmust be updated by filing a new application within two years or uponrenewal to comply with Chapter 326 of this title. The executive directoris authorized to extend this deadline based on an authorized entitymaking a request supported by good cause. A person who has an applicationfor the management of medical waste pending before the effective dateof Chapter 326 of this title shall be considered under the formerChapter 330 rules unless the applicant elects otherwise.
§330.3.Definitions.
Unless otherwise noted, all terms contained in this sectionare defined by their plain meaning. This section contains definitionsfor terms that appear throughout this chapter. Additional definitionsmay appear in the specific section to which they apply. The followingwords and terms, when used in this chapter, have the following meanings,unless the context clearly indicates otherwise.
(1) 100-year flood--A flood that has a 1.0% or greaterchance of recurring in any given year or a flood of a magnitude equaledor exceeded once in 100 years on the average over a significantlylong period.
(2) Active disposal area--All landfill working facesand areas covered with daily and alternative daily cover.
(3) Active life--The period of operation beginningwith the initial receipt of solid waste and ending at certification/completionof closure activities in accordance with §§330.451, 330.453,330.455, 330.457, and 330.459 of this title (relating to Applicability;Closure Requirements for Municipal Solid Waste Landfill Units thatStopped Receiving Waste Prior to October 9, 1991, Type IV Landfills,and Municipal Solid Waste Sites; Closure Requirements for MunicipalSolid Waste Landfill Units that Received Waste on or after October9, 1991, but Stopped Receiving Waste Prior to October 9, 1993; ClosureRequirements for Municipal Solid Waste Landfill Units that ReceiveWaste on or after October 9, 1993; and Closure Requirements for MunicipalSolid Waste Storage and Processing Units).
(4) Active portion--That part of a facility or unitthat has received or is receiving wastes and that has not been closedin accordance with §§330.451, 330.453, 330.455, 330.457,and 330.459 of this title (relating to Applicability; Closure Requirementsfor Municipal Solid Waste Landfill Units that Stopped Receiving WastePrior to October 9, 1991, Type IV Landfills, and Municipal Solid WasteSites; Closure Requirements for Municipal Solid Waste Landfill Unitsthat Received Waste on or after October 9, 1991, but Stopped ReceivingWaste Prior to October 9, 1993; Closure Requirements for MunicipalSolid Waste Landfill Units that Receive Waste on or after October9, 1993; and Closure Requirements for Municipal Solid Waste Storageand Processing Units).
(5) Advanced recycling facility--Amanufacturing facility that receives, stores, and converts post-usepolymers and recoverable feedstocks using advanced recycling technologiesand processes including pyrolysis, gasification, solvolysis, and depolymerization.An advanced recycling facility is not a solid waste facility, finaldisposal facility, waste-to-energy facility, or incinerator.
(6)[(5)] Airport--A public-useairport open to the public without prior permission and without restrictionswithin the physical capacities of available facilities.
(7)[(6)] Ancillary equipment--Anydevice that is used to distribute, meter, or control the flow of solidwaste from its point of generation to a storage or processing tank(s),between solid waste storage and processing tanks to a point of disposalon-site, or to a point of shipment for disposal off-site. Such devicesinclude, but are not limited to, piping, fittings, flanges, valves,and pumps.
(8)[(7)] Animal crematory--Afacility for the incineration of animal remains that meets the followingcriteria:
(A)control of combustion air to maintain adequatetemperature for efficient combustion;
(B)containment of the combustion reaction in an encloseddevice to provide sufficient residence time and mixing for completecombustion; and
(C)control of the emission of the combustion products.
(9)[(8)] Aquifer--A geologicalformation, group of formations, or portion of a formation capableof yielding significant quantities of groundwater to wells or springs.
(10)[(9)] Areas susceptibleto mass movements--Areas of influence (i.e., areas characterized ashaving an active or substantial possibility of mass movement) wherethe movement of earth material at, beneath, or adjacent to the municipalsolid waste landfill unit, because of natural or man-induced events,results in the downslope transport of soil and rock material by meansof gravitational influence. Areas of mass movement include, but arenot limited to, landslides, avalanches, debris slides and flows, soilfluctuation, block sliding, and rock fall.
(11)[(10)] Asbestos-containingmaterials--Include the following.
(A)Category I nonfriable asbestos-containing materialmeans asbestos-containing packings, gaskets, resilient floor covering,and asphalt roofing products containing more than 1.0% asbestos asdetermined using the method specified in Appendix E to SubpartE of [Appendix A, Subpart F,] 40 Code of FederalRegulations (CFR) Part 763, §1, Polarized Light Microscopy.
(B)Category II nonfriable asbestos-containing materialmeans any material, excluding Category I nonfriable asbestos-containingmaterial, containing more than 1.0% asbestos as determined using themethods specified in Appendix E to Subpart E of [AppendixA, Subpart F,] 40 CFR Part 763, §1, Polarized Light Microscopy,that, when dry, cannot be crumbled, pulverized, or reduced to powderby hand pressure.
(C)Friable asbestos-containing material means anymaterial containing more than 1.0% asbestos that, when dry, can becrumbled, pulverized, or reduced to powder by hand pressure.
(D)Nonfriable asbestos-containing material means anymaterial containing more than 1.0% asbestos that, when dry, cannotbe crumbled, pulverized, or reduced to powder by hand pressure.
(12)[(11)] ASTM--The AmericanSociety for Testing and Materials.
(13)[(12)] Battery--An electrochemicaldevice that generates electric current by converting chemical energy.Its essential components are positive and negative electrodes madeof more or less electrically conductive materials, a separate medium,and an electrolyte. There are four major types:
(A)primary batteries (dry cells);
(B)storage or secondary batteries;
(C)nuclear and solar cells or energy converters; and
(D)fuel cells.
(14)[(13)] Battery acid (alsoknown as electrolyte acid)--A solution of not more than 47% sulfuricacid in water suitable for use in storage batteries, which is waterwhite, odorless, and practically free from iron.
(15)[(14)] Battery retailer--Aperson or business location that sells lead-acid batteries to thegeneral public, without restrictions to limit purchases to institutionalor industrial clients only.
(16)[(15)] Battery wholesaler--Aperson or business location that sells lead-acid batteries directlyto battery retailers, to government entities by contract sale, orto large-volume users, either directly or by contract sale.
(17)[(16)] Bird hazard--An increasein the likelihood of bird/aircraft collisions that may cause damageto an aircraft or injury to its occupants.
(18)[(17)] Boiler--An encloseddevice using controlled flame combustion and having the followingcharacteristics.
(A)The unit must have physical provisions for recoveringand exporting thermal energy in the form of steam, heated fluids,or heated gases.
(B)The unit's combustion chamber and primary energyrecovery section(s) must be of integral design. To be of integraldesign, the combustion chamber and the primary energy recovery section(s)(such as waterwalls and superheaters) must be physically formed intoone manufactured or assembled unit. A unit in which the combustionchamber and the primary energy recovery section(s) are joined onlyby ducts or connections carrying flue gas is not integrally designed;however, secondary energy recovery equipment (such as economizersor air preheaters) need not be physically formed into the same unitas the combustion chamber and the primary energy recovery section.The following units are not precluded from being boilers solely becausethey are not of integral design:
(i)process heaters (units that transfer energy directlyto a process stream); and
(ii)fluidized bed combustion units.
(C)While in operation, the unit must maintain a thermalenergy recovery efficiency of at least 60%, calculated in terms ofthe recovered energy compared with the thermal value of the fuel.
(D)The unit must export and utilize at least 75% ofthe recovered energy, calculated on an annual basis. In this calculation,no credit shall be given for recovered heat used internally in thesame unit. Examples of internal use are the preheating of fuel orcombustion air, and the driving of induced or forced draft fans orfeedwater pumps.
(19)[(18)] Brush--Cuttings ortrimmings from trees, shrubs, or lawns and similar materials.
(20)[(19)] Buffer zone--A zonefree of municipal solid waste processing and disposal activities withinand adjacent to the facility boundary on property owned or controlledby the owner or operator.
(21)[(20)] Citizens' collectionstation--A facility established for the convenience and exclusiveuse of residents (not commercial or industrial users or collectionvehicles), except that in small communities where regular collectionsare not available, small quantities of commercial waste may be depositedby the generator of the waste. The facility may consist of one ormore storage containers, bins, or trailers.
(22)[(21)] Class 1 wastes--Anyindustrial solid waste or mixture of industrial solid wastes thatbecause of its concentration, or physical or chemical characteristicsis toxic, corrosive, flammable, a strong sensitizer or irritant, agenerator of sudden pressure by decomposition, heat, or other means,or may pose a substantial present or potential danger to human healthor the environment when improperly processed, stored, transported,or disposed of or otherwise managed, as further defined in §335.505of this title (relating to Class 1 Waste Determination).
(23)[(22)] Class 2 wastes--Anyindividual solid waste or combination of industrial solid waste thatare not described as Hazardous, Class 1, or Class 3 as defined in§335.506 of this title (relating to Class 2 Waste Determination).
(24)[(23)] Class 3 wastes--Inertand essentially insoluble industrial solid waste, usually including,but not limited to, materials such as rock, brick, glass, dirt, andcertain plastics and rubber, etc., that are not readily decomposable,as further defined in §335.507 of this title (relating to Class3 Waste Determination).
(25)[(24)] Collection--The actof removing solid waste (or materials that have been separated forthe purpose of recycling) for transport elsewhere.
(26)[(25)] Collection system--Thetotal process of collecting and transporting solid waste. It includesstorage containers; collection crews, vehicles, equipment, and management;and operating procedures. Systems are classified as municipal, contractor,or private.
(27)[(26)] Commence physicalconstruction--The initiation of physical on-site construction on asite for which an application to authorize a municipal solid wastemanagement unit is pending, the construction of which requires approvalof the commission. Construction of actual waste management units andnecessary appurtenances requires approval of the commission, but otherfeatures not specific to waste management are allowed without commissionapproval.
(28)[(27)] Commercial solidwaste--All types of solid waste generated by stores, offices, restaurants,warehouses, and other nonmanufacturing activities, excluding residentialand industrial wastes.
(29)[(28)] Compacted waste--Wastethat has been reduced in volume by a collection vehicle or other meansincluding, but not limited to, dewatering, composting, incineration,and similar processes, with the exception of waste that has been reducedin volume by a small, in-house compactor device owned and/or operatedby the generator of the waste.
(30)[(29)] Composite liner--Aliner system consisting of two components: the upper component mustconsist of a minimum 30-mil geomembrane liner or minimum 60-mil high-densitypolyethylene, and the lower component must consist of at least a two-footlayer of re-compacted soil deposited in lifts with a hydraulic conductivityof no more than 1 x 10-7 centimeters/second. The geomembrane linercomponent must be installed in direct and uniform contact with thecompacted soil component.
(31)[(30)] Compost--The stabilizedproduct of the decomposition process that is used or sold for useas a soil amendment, artificial top soil, growing medium amendment,or other similar uses.
(32)[(31)] Composting--The controlledbiological decomposition of organic materials through microbial activity.
(33)[(32)] Conditionally exemptsmall-quantity generator--A conditionally exempt small quantitygenerator (CESQG) is a very small quantity generator (VSQG) as definedin this section that meets the independent requirements and the conditionsfor exemption for a VSQG under §335.53 of this title (relatingto General Standards Applicable to Generators of Hazardous Waste).A reference to a conditionally exempt small quantity generator, "CESQG",or a person who generates no more than 100 kilograms (220 pounds)of non-acute hazardous waste or no more than 1 kilogram (2.2 pounds)of acute hazardous waste in a calendar month is a reference to a VSQG [A person that generates no more than 220 pounds of hazardous wastein a calendar month].
(34)[(33)] Construction or demolitionwaste--Waste resulting from construction or demolition projects; includesall materials that are directly or indirectly the by-products of constructionwork or that result from demolition of buildings and other structures,including, but not limited to, paper, cartons, gypsum board, wood,excelsior, rubber, and plastics.
(35)[(34)] Container--Any portabledevice in which a material is stored, transported, or processed.
(36)[(35)] Contaminate--To alterthe chemical, physical, biological, or radiological integrity of groundor surface water by man-made or man-induced means.
(37)[(36)] Contaminated water--Leachate,gas condensate, or water that has come into contact with waste.
(38)[(37)] Controlled burning--Thecombustion of solid waste with control of combustion air to maintainadequate temperature for efficient combustion; containment of thecombustion reaction in an enclosed device to provide sufficient residencetime and mixing for complete combustion; and control of the emissionof the combustion products, i.e., incineration in an incinerator.
(39)Depolymerization--A manufacturingprocess through which post-use polymers are broken down into:
(A)smaller molecules, including monomers and oligomers;or
(B)raw materials, intermediate products, or finalproducts, including plastic feedstocks, chemical feedstocks, basicand unfinished chemicals, waxes, lubricants, or coatings; and
(C)does not include crude oil, diesel, gasoline, dieselblend stock, gasoline blend stock, home heating oil, ethanol, or anotherfuel.
(40)[(38)] Discard--To abandona material and not use, re-use, reclaim, or recycle it. A materialis abandoned by being disposed of; burned or incinerated (except wherethe material is being burned as a fuel for the purpose of recoveringusable energy); or physically, chemically, or biologically treated(other than burned or incinerated) in lieu of or prior to being disposed.
(41)[(39)] Discharge--Includesdeposit, conduct, drain, emit, throw, run, allow to seep, or otherwiserelease, or to allow, permit, or suffer any of these acts or omissions.
(42)[(40)] Discharge of dredgedmaterial--Any addition of dredged material into the waters of theUnited States. The term includes, without limitation, the additionof dredged material to a specified disposal site located in watersof the United States and the runoff or overflow from a contained landor water disposal area.
(43)[(41)] Discharge of fillmaterial--The addition of fill material into waters of the UnitedStates. The term generally includes placement of fill necessary tothe construction of any structure in waters of the United States:the building of any structure or improvement requiring rock, sand,dirt, or other inert material for its construction; the building ofdams, dikes, levees, and riprap.
(44)[(42)] Discharge of pollutant--Anyaddition of any pollutant to navigable waters from any point sourceor any addition of any pollutant to the waters of the contiguous zoneor the ocean from any point source.
(45)[(43)] Displacement--Themeasured or estimated distance between two formerly adjacent pointssituated on opposite walls of a fault (synonymous with net slip).
(46)[(44)] Disposal--The discharge,deposit, injection, dumping, spilling, leaking, or placing of anysolid waste or hazardous waste (whether containerized or uncontainerized)into or on any land or water so that such solid waste or hazardouswaste or any constituent thereof may enter the environment or be emittedinto the air or discharged into any waters, including groundwater.
(47)[(45)] Dredged material--Materialthat is excavated or dredged from waters of the United States.
(48)[(46)] Drinking-water intake--Thepoint at which water is withdrawn from any water well, spring, orsurface water body for use as drinking water for humans, includingstandby public water supplies.
(49)[(47)] Elements of nature--Rainfall,snow, sleet, hail, wind, sunlight, or other natural phenomenon.
(50)[(48)] Endangered or threatenedspecies--Any species listed as such under the Federal Endangered SpeciesAct, §4, 16 United States Code, §1536, as amended or underthe Texas Endangered Species Act.
(51)[(49)] Essentially insoluble--Anymaterial that, if representatively sampled and placed in static ordynamic contact with deionized water at ambient temperature for sevendays, will not leach any quantity of any constituent of the materialinto the water in excess of the maximum contaminant levels in 40 Codeof Federal Regulations (CFR) Part 141, Subparts B and G, and 40 CFRPart 143 for total dissolved solids.
(52)[(50)] Existing municipalsolid waste landfill unit--Any municipal solid waste landfill unitthat received solid waste as of October 9, 1993.
(53)[(51)] Experimental project--Anynew proposed method of managing municipal solid waste, including resourceand energy recovery projects, that appears to have sufficient meritto warrant commission approval.
(54)[(52)] Facility--All contiguousland and structures, other appurtenances, and improvements on theland used for the storage, processing, or disposal of solid waste.
(55)[(53)] Fault--A fractureor a zone of fractures in any material along which strata, rocks,or soils on one side have been displaced with respect to those onthe other side.
(56)[(54)] Fill material--Anymaterial used for the primary purpose of filling an excavation.
(57)[(55)] Floodplain--The lowlandand relatively flat areas adjoining inland and coastal waters, includingflood-prone areas of offshore islands, that are inundated by the 100-yearflood.
(58)[(56)] Garbage--Solid wasteconsisting of putrescible animal and vegetable waste materials resultingfrom the handling, preparation, cooking, and consumption of food,including waste materials from markets, storage facilities, handling,and sale of produce and other food products.
(59)[(57)] Gas condensate--Theliquid generated as a result of any gas recovery process at a municipalsolid waste facility.
(60)[(58)] Gasification--A processthrough which recoverable feedstocks are heated and converted intoa fuel-gas mixture in an oxygen-deficient atmosphere and the mixtureis converted into valuable raw materials, valuable intermediateproducts, or valuable final products, which include plastic monomers,chemicals, waxes, lubricants, or chemical feedstocks; and do not includecrude oil, diesel, gasoline, diesel blend stock, gasoline blend stock,home heating oil, ethanol, or another fuel. [a valuableraw, intermediate, or final product, including a plastic, monomer,chemical, wax, lubricant, or chemical feedstock or crude oil, diesel,gasoline, diesel and gasoline blendstock, home heating oil, ethanol,or another fuel.] The term does not include incineration.
[(59)Gasification facility--A facilitythat receives, separates, stores, and converts post-use polymers andrecoverable feedstocks using gasification. The commission may notconsider a gasification facility to be a hazardous waste managementfacility, a solid waste management facility, or an incinerator.]
(61)[(60)] Generator--Any person,by site or location, that produces solid waste to be shipped to anyother person, or whose act or process produces a solid waste or firstcauses it to become regulated.
(62)[(61)] Grease trap waste--Materialcollected in and from a grease interceptor in the sanitary sewer serviceline of a commercial, institutional, or industrial food service orprocessing establishment, including the solids resulting from dewateringprocesses.
(63)[(62)] Grit trap waste--Grittrap waste includes waste from interceptors placed in the drains priorto entering the sewer system at maintenance and repair shops, automobileservice stations, car washes, laundries, and other similar establishments.
(64)[(63)] Groundwater--Waterbelow the land surface in a zone of saturation.
(65)[(64)] Hazardous waste--Anysolid waste identified or listed as a hazardous waste by the administratorof the United States Environmental Protection Agency under the federalSolid Waste Disposal Act, as amended by the Resource Conservationand Recovery Act of 1976, 42 United States Code, §§6901et seq. , as amended.
(66)[(65)] Holocene--The mostrecent epoch of the Quaternary Period, extending from the end of thePleistocene Epoch to the present.
(67)[(66)] Household waste--Anysolid waste (including garbage, trash, and sanitary waste in septictanks) derived from households (including single and multiple residences,hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds,picnic grounds, and day-use recreation areas); does not include brush.
(68)[(67)] Incinerator--Anyenclosed device that:
(A)uses controlled flame combustion and neither meetsthe criteria for classification as a boiler, sludge dryer, or carbonregeneration unit, nor is listed as an industrial furnace, as definedin §335.1 of this title (relating to Definitions); or
(B)meets the definition of infrared incinerator orplasma arc incinerator.
(69)[(68)] Industrial solidwaste--Solid waste resulting from or incidental to any process ofindustry or manufacturing, or mining or agricultural operations.
(70)[(69)] Inert material--Anatural or man-made nonputrescible, nonhazardous material that isessentially insoluble, usually including, but not limited to, soil,dirt, clay, sand, gravel, brick, glass, concrete with reinforcingsteel, and rock.
(71)[(70)] Infrared incinerator--Anyenclosed device that uses electric-powered resistance heaters as asource of radiant heat followed by an afterburner using controlledflame combustion and is not listed as an industrial furnace as definedin §335.1 of this title (relating to Definitions).
(72)[(71)] Injection well--Awell into which fluids are injected.
(73)[(72)] In situ--In naturalor original position.
(74)[(73)] Karst terrain--Anarea where karst topography, with its characteristic surface and/orsubterranean features, is developed principally as the result of dissolutionof limestone, dolomite, or other soluble rock. Characteristic physiographicfeatures present in karst terrains include, but are not limited to,sinkholes, sinking streams, caves, large springs, and blind valleys.
(75)[(74)] Lateral expansion--Ahorizontal expansion of the waste boundaries of an existing municipalsolid waste landfill unit.
(76)[(75)] Land applicationof solid waste--The disposal or use of solid waste (including, butnot limited to, sludge or septic tank pumpings or mixture of shreddedwaste and sludge) in which the solid waste is applied within threefeet of the surface of the land.
(77)[(76)] Land treatment unit--Asolid waste management unit at which solid waste is applied onto orincorporated into the soil surface and that is not a corrective actionmanagement unit; such units are disposal units if the waste will remainafter closure.
(78)[(77)] Landfill--A solidwaste management unit where solid waste is placed in or on land andwhich is not a pile, a land treatment unit, a surface impoundment,an injection well, a salt dome formation, a salt bed formation, anunderground mine, a cave, or a corrective action management unit.
(79)[(78)] Landfill cell--Adiscrete area of a landfill.
(80)[(79)] Landfill mining--Thephysical procedures associated with the excavation of buried municipalsolid waste and processing of the material to recover material forbeneficial use.
(81)[(80)] Leachate--A liquidthat has passed through or emerged from solid waste and contains soluble,suspended, or miscible materials removed from such waste.
(82)[(81)] Lead acid battery--Asecondary or storage battery that uses lead as the electrode and dilutesulfuric acid as the electrolyte and is used to generate electricalcurrent.
(83)[(82)] License--
(A)A document issued by an approved county authorizingand governing the operation and maintenance of a municipal solid wastefacility used to process, treat, store, or dispose of municipal solidwaste, other than hazardous waste, in an area not in the territoriallimits or extraterritorial jurisdiction of a municipality.
(B)An occupational license as defined in Chapter 30of this title (relating to Occupational Licenses and Registrations).
(84)[(83)] Liquid waste--Anywaste material that is determined to contain "free liquids" as definedby United States Environmental Protection Agency (EPA) Method 9095(Paint Filter Test), as described in "Test Methods for EvaluatingSolid Wastes, Physical/Chemical Methods" (EPA Publication Number SW-846).
(85)[(84)] Litter--Rubbish andputrescible waste.
(86)[(85)] Low volume transferstation--A transfer station used for the storage of collected householdwaste limited to a total storage capacity of 40 cubic yards locatedin an unincorporated area that is not within the extraterritorialjurisdiction of a city.
(87)[(86)] Lower explosive limit--Thelowest percent by volume of a mixture of explosive gases in air thatwill propagate a flame at 25 degrees Celsius and atmospheric pressure.
(88)[(87)] Medical waste--Treatedand untreated special waste from health care-related facilities thatis comprised of animal waste, bulk blood, bulk human blood, bulk humanbody fluids, microbiological waste, pathological waste, and sharpsas those terms are defined in 25 TAC §1.132 (relating to Definitions)from the sources specified in 25 TAC §1.134 (relating to Application),as well as regulated medical waste as defined in 49 Code of FederalRegulations §173.134(a)(5), except that the term does not includemedical waste produced on a farm or ranch as defined in 34 TAC §3.296(f)(relating to Agriculture, Animal Life, Feed, Seed, Plants, and Fertilizer),nor does the term include artificial, nonhuman materials removed froma patient and requested by the patient, including, but not limitedto, orthopedic devices and breast implants. Health care-related facilitiesdo not include:
(A)single or multi-family dwellings; and
(B)hotels, motels, or other establishments that providelodging and related services for the public.
(89)[(88)] Monofill--A landfillor landfill cell into which only one type of waste is placed.
(90)[(89)] Municipal hazardouswaste--Any municipal solid waste or mixture of municipal solid wastesthat has been identified or listed as a hazardous waste by the administrator,United States Environmental Protection Agency.
(91)[(90)] Municipal solid waste--Solidwaste resulting from or incidental to municipal, community, commercial,institutional, and recreational activities, including garbage, rubbish,ashes, street cleanings, dead animals, abandoned automobiles, andall other solid waste other than industrial solid waste.
(92)[(91)] Municipal solid wastefacility--All contiguous land, structures, other appurtenances, andimprovements on the land used for processing, storing, or disposingof solid waste. A facility may be publicly or privately owned andmay consist of several processing, storage, or disposal operationalunits, e.g., one or more landfills, surface impoundments, or combinationsof them.
(93)[(92)] Municipal solid wastelandfill unit--A discrete area of land or an excavation that receiveshousehold waste and that is not a land application unit, surface impoundment,injection well, or waste pile, as those terms are defined under 40Code of Federal Regulations §257.2. A municipal solid waste (MSW)landfill unit also may receive other types of Resource Conservationand Recovery Act Subtitle D wastes, such as commercial solid waste,nonhazardous sludge, hazardous waste generated by a very smallquantity generator (VSQG) during a month in which the VSQG did notgenerate hazardous waste during an episodic event[conditionallyexempt small-quantity generator waste], and industrial solidwaste. Such a landfill may be publicly or privately owned. An MSWlandfill unit may be a new MSW landfill unit, an existing MSW landfillunit, a vertical expansion, or a lateral expansion.
(94)[(93)] New facility--A municipalsolid waste facility that has not begun construction.
(95)[(94)] Nonpoint source--Anyorigin from which pollutants emanate in an unconfined and unchanneledmanner, including, but not limited to, surface runoff and leachateseeps.
(96)[(95)] Non-regulated asbestos-containingmaterial--Non-regulated asbestos-containing material as defined in40 Code of Federal Regulations Part 61. This is asbestos materialin a form such that potential health risks resulting from exposureto it are minimal.
(97)[(96)] Notification--Theact of filing information with the commission for specific solid wastemanagement activities that do not require a permit or a registration,as determined by this chapter.
(98)[(97)] Nuisance--Municipalsolid waste that is stored, processed, or disposed of in a mannerthat causes the pollution of the surrounding land, the contaminationof groundwater or surface water, the breeding of insects or rodents,or the creation of odors adverse to human health, safety, or welfare.A nuisance is further set forth in Texas Health and Safety Code, Chapters341 and 382; Texas Water Code, Chapter 26; and any other applicableregulation or statute.
(99)[(98)] Open burning--Thecombustion of solid waste without:
(A)control of combustion air to maintain adequatetemperature for efficient combustion;
(B)containment of the combustion reaction in an encloseddevice to provide sufficient residence time and mixing for completecombustion; and
(C)control of the emission of the combustion products.
(100)[(99)] Operate--To conduct,work, run, manage, or control.
(101)[(100)] Operating hours--Thehours when the facility is open to receive waste, operate heavy equipment,and transport materials on- or off-site.
(102)[(101)] Operating record--Allplans, submittals, and correspondence for a municipal solid wastefacility required under this chapter; required to be maintained atthe facility or at a nearby site acceptable to the executive director.
(103)[(102)] Operation--A municipalsolid waste (MSW) site or facility is considered to be in operationfrom the date that solid waste is first received or deposited at theMSW site or facility until the date that the site or facility is properlyclosed in accordance with this chapter.
(104)[(103)] Operator--The person(s)responsible for operating the facility or part of a facility.
(105)[(104)] Owner--The personthat owns a facility or part of a facility.
(106)[(105)] Permitted landfill--Anytype of municipal solid waste landfill that received a permit fromthe State of Texas to operate and has not completed post-closure operations.
(107)[(106)] Physical construction--Thefirst placement of permanent construction on a site, such as the pouringof slab or footings, the installation of piles, the construction ofcolumns, the laying of underground pipework, or any work beyond thestage of excavation. Physical construction does not include land preparation,such as clearing, grading, excavating, and filling; nor does it includethe installation of roads and/or walkways. Physical construction includesissuance of a building or other construction permit, provided thatpermanent construction commences within 180 days of the date thatthe building permit was issued.
(108)[(107)] Plasma arc incinerator--Anyenclosed device using a high intensity electrical discharge or arcas a source of heat followed by an afterburner using controlled flamecombustion and not listed as an industrial furnace as defined by §335.1of this title (relating to Definitions).
(109)[(108)] Point of compliance--Avertical surface located no more than 500 feet from the hydraulicallydowngradient limit of the waste management unit boundary, extendingdown through the uppermost aquifer underlying the regulated units,and located on land owned by the owner of the facility.
(110)[(109)] Point source--Anydiscernible, confined, and discrete conveyance, including, but notlimited to, any pipe, ditch, channel, tunnel, conduit, well, or discretefissure from which pollutants are or may be discharged.
(111)[(110)] Pollutant--Contaminateddredged spoil, solid waste, contaminated incinerator residue, sewage,sewage sludge, munitions, chemical wastes, or biological materialsdischarged into water.
(112)[(111)] Pollution--Theman-made or man-induced alteration of the chemical, physical, biological,or radiological integrity of an aquatic ecosystem.
(113)[(112)] Polychlorinatedbiphenyl (PCB)--Any chemical substance that is limited to the biphenylmolecule that has been chlorinated to varying degrees or any combinationof substances that contains such substance.
(114)[(113)] Polychlorinatedbiphenyl (PCB) waste(s)--Those PCBs and PCB items that are subjectto the disposal requirements of 40 Code of Federal Regulations (CFR)Part 761. Substances that are regulated by 40 CFR Part 761 include,but are not limited to: PCB articles, PCB article containers, PCBcontainers, PCB-contaminated electrical equipment, PCB equipment,PCB transformers, recycled PCBs, capacitors, microwave ovens, electronicequipment, and light ballasts and fixtures.
(115)[(114)] Poor foundationconditions--Areas where features exist, indicating that a naturalor man-induced event may result in inadequate foundation support forthe structural components of a municipal solid waste landfill unit.
(116)[(115)] Population equivalent--Thehypothetical population that would generate an amount of solid wasteequivalent to that actually being managed based on a generation rateof five pounds per capita per day and applied to situations involvingsolid waste not necessarily generated by individuals. It is assumed,for the purpose of these sections, that the average volume per tonof waste entering a municipal solid waste disposal facility is threecubic yards.
(117)[(116)] Post-consumer waste--Amaterial or product that has served its intended use and has beendiscarded after passing through the hands of a final user. For thepurposes of this subchapter, the term does not include industrialor hazardous waste.
(118)[(117)] Post-use polymers--Plastics: [Plastic polymers that derive from any household,industrial, community, commercial, or other sources of operationsor activities that might otherwise become waste if not converted intoa valuable raw, intermediate, or final product. Post-use polymersinclude used polymers that contain incidental contaminants or impuritiessuch as paper labels or metal rings but do not include used polymersmixed with solid waste, medical waste, hazardous waste, electronicwaste, tires, or construction or demolition debris.]
(A)derived from an industrial, commercial,agricultural, or domestic activity, including preconsumer recoveredmaterials and postconsumer materials;
(B) that would be classified as nonhazardoussolid waste if discarded;
(C) that have been sorted from solidwaste and other regulated waste and may contain residual amounts oforganic material and incidental contaminants or impurities such aspaper labels or metal rings;
(D) not mixed with solid waste orhazardous waste on-site or while being processed at an advanced recycling facility;
(E) used or intended for use as afeedstock or for the production of feedstocks, raw materials, intermediateproducts, or final products using advanced recycling; and
(F) processed or held prior to beingprocessed at an advanced recycling facility.
(119) [(118)] Premises--A tractof land with the buildings thereon, or a building or part of a buildingwith its grounds or other appurtenances.
(120) [(119)] Process to furtherreduce pathogens--The process to further reduce pathogens as describedin 40 Code of Federal Regulations Part 503, Appendix B.
(121) [(120)] Processing--Activitiesincluding, but not limited to, the extraction of materials, transfer,volume reduction, conversion to energy, or other separation and preparationof solid waste for reuse or disposal, including the treatment or neutralizationof waste, designed to change the physical, chemical, or biologicalcharacter or composition of any waste to neutralize such waste, orto recover energy or material from the waste, or render the wastesafer to transport, store, dispose of, or make it amenable for recovery,amenable for storage, or reduced in volume. The term does not includepyrolysis, gasification, solvolysis, or depolymerization. [or gasification.]
(122) [(121)] Public highway--Theentire width between property lines of any road, street, way, thoroughfare,bridge, public beach, or park in this state, not privately owned orcontrolled, if any part of the road, street, way, thoroughfare, bridge,public beach, or park is opened to the public for vehicular traffic,is used as a public recreational area, or is under the state's legislativejurisdiction through its police power.
(123) [(122)] Putrescible waste--Organicwastes, such as garbage, wastewater treatment plant sludge, and greasetrap waste, that are capable of being decomposed by microorganismswith sufficient rapidity as to cause odors or gases or are capableof providing food for or attracting birds, animals, and disease vectors.
(124)[(123)] Pyrolysis--A manufacturingprocess through which post-use polymers are heated in an oxygen-deficientatmosphere and the pyrolysis product is converted into valuableraw materials, valuable intermediate products, or valuable final products,which include plastic monomers, chemicals, naphtha, waxes, polymers,plastic feedstocks, or chemical feedstocks; and do not include crudeoil, diesel, gasoline, diesel blend stock, gasoline blend stock, homeheating oil, ethanol, or another fuel. [until melted andthermally decomposed and then cooled, condensed, and converted intoa valuable raw, intermediate, or final product, including a plastic,monomer, chemical, wax, lubricant, or chemical feedstock or crudeoil, diesel, gasoline, diesel and gasoline blendstock, home heatingoil, ethanol, or another fuel.] The term does not include incineration.
[(124)Pyrolysis facility--A manufacturingfacility that receives, separates, stores, and converts post-use polymersusing pyrolysis. The commission may not consider a pyrolysis facilityto be a hazardous waste management facility, a solid waste managementfacility, or an incinerator.]
(125)Qualified groundwater scientist--A licensed geoscientistor licensed engineer who has received a baccalaureate or post-graduatedegree in the natural sciences or engineering and has sufficient trainingin groundwater hydrology and related fields as may be demonstratedby state registration, professional certifications, or completionof accredited university programs that enable the individual to makesound professional judgments regarding groundwater monitoring, contaminantfate and transport, and corrective action.
(126)Radioactive waste--Waste that requires specificlicensing under 25 TAC Chapter 289 (relating to Radiation Control),and the rules adopted by the commission under the Texas Health andSafety Code.
(127)Recoverable feedstock--One or more of the followingmaterials, derived from recoverable nonhazardous wasteother than coal refuse, that has been processed so that it may beused as feedstock in an "Advanced recycling facility" or through"Gasification" as these terms are defined in this section [agasification facility]:
(A)post-use polymers; [and]
(B)material, including municipal solid waste andother post-industrial waste: [containing post-use polymersand other post-industrial waste containing post-use polymers, thathas been processed into a fuel or feedstock for which the commissionor the United States Environmental Protection Agency has made a non-wastedetermination under 40 Code of Federal Regulations §241.3(c).]
(i)for which the commission or theUnited States Environmental Protection Agency has made a non-wastedetermination under 40 Code of Federal Regulations §241.3(c); or
(ii) that the commission or the UnitedStates Environmental Protection Agency has otherwise determined arefeedstocks and not solid waste; and
(C) excluding fuels.
(128) Recyclable material--A material that canbe or has been recovered or diverted from the nonhazardous wastestream for purposes of reuse, recycling, or reclamation, a substantialportion of which is consistently used in the manufacture of productsthat may otherwise be produced using raw or virgin materials. Theterm includes any nonhazardous waste stream, including post-usepolymers and recoverable feedstocks that are converted through pyrolysis, gasification, solvolysis, or depolymerization into valuable rawmaterials, valuable intermediate products, or valuable final products. [or gasification into valuable raw, intermediate, and final products.]Recyclable material is not solid waste. However, recyclable materialmay become solid waste at such time, if any, as it is abandoned ordisposed of rather than recycled, whereupon it will be solid wastewith respect only to the party actually abandoning or disposing ofthe material.
(129) Recycling--A process by which materials thathave served their intended use or are scrapped, discarded, used, surplus,or obsolete are collected, separated, or processed and returned touse in the form of raw materials or feedstocks used in the manufacture [in the production] of new products. Except formixed municipal solid waste composting, that is, composting of thetypical mixed solid waste stream generated by residential, commercial,and/or institutional sources, recycling includes the composting processif the compost material is put to beneficial use. Recycling includesthe conversion of post-use polymers and recoverable feedstocks throughpyrolysis, gasification, solvolysis, or depolymerization, but doesnot include incineration of plastics or waste-to-energy processes.
(130) Refuse--Same as rubbish.
(131) Registration--The act of filing information withthe commission for review and approval for specific solid waste managementactivities that do not require a permit, as determined by this chapter.
(132) Regulated asbestos-containing material--Regulatedasbestos-containing material as defined in 40 Code of Federal RegulationsPart 61, as amended, includes: friable asbestos material, CategoryI nonfriable asbestos-containing material that has become friable;Category I nonfriable asbestos-containing material that will be orhas been subjected to sanding, grinding, cutting, or abrading; orCategory II nonfriable asbestos-containing material that has a highprobability of becoming or has become crumbled, pulverized, or reducedto powder by the forces expected to act on the material in the courseof demolition or renovation operations.
(133)Regulated hazardous waste--A solid waste thatis a hazardous waste as defined in 40 Code of Federal Regulations(CFR) §261.3 and that is not excluded from regulation as a hazardouswaste under 40 CFR §261.4(b), or that was not generated by a verysmall quantity generator (VSQG) during a month in which the VSQG didnot generate hazardous waste during an episodic event [conditionallyexempt small-quantity generator].
(134)Resource recovery--The recovery of material orenergy from solid waste.
(135)Resource recovery facility--A solid waste processingfacility at which solid waste is processed for the purpose of extracting,converting to energy, or otherwise separating and preparing solidwaste for reuse.
(136)Rubbish--Nonputrescible solid waste (excludingashes), consisting of both combustible and noncombustible waste materials.Combustible rubbish includes paper, rags, cartons, wood, excelsior,furniture, rubber, plastics, brush, or similar materials; noncombustiblerubbish includes glass, crockery, tin cans, aluminum cans, and similarmaterials that will not burn at ordinary incinerator temperatures(1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).
(137)Run-off--Any rainwater, leachate, or other liquidthat drains over land from any part of a facility.
(138)Run-on--Any rainwater, leachate, or other liquidthat drains over land onto any part of a facility.
(139)Salvaging--The controlled removal of waste materialsfor utilization, recycling, or sale.
(140)Saturated zone--That part of the earth's crustin which all voids are filled with water.
(141)Scavenging--The uncontrolled and unauthorizedremoval of materials at any point in the solid waste management system.
(142)Scrap tire--Any tire that can no longer be usedfor its original intended purpose.
(143)Seasonal high-water level--The highest measuredor calculated water level in an aquifer during investigations fora permit application and/or any groundwater characterization studiesat a facility.
(144)Septage--The liquid and solid material pumpedfrom a septic tank, cesspool, or similar sewage treatment system.
(145)Site--Same as facility.
(146)Site development plan--A document, prepared bythe design engineer, that provides a detailed design with supportingcalculations and data for the development and operation of a solidwaste site.
(147)Site operating plan--A document, prepared bythe design engineer in collaboration with the facility operator, thatprovides general instruction to facility management and operatingpersonnel throughout the operating life of the facility in a mannerconsistent with the engineer's design and the commission's regulationsto protect human health and the environment and prevent nuisances.
(148)Site operator--The holder of, or the applicantfor, an authorization (or license) for a municipal solid waste facility.
(149)Sludge--Any solid, semi-solid, or liquid wastegenerated from a municipal, commercial, or industrial wastewater treatmentplant, water-supply treatment plant, or air pollution control facility,exclusive of the treated effluent from a wastewater treatment plant.
(150)Small municipal solid waste landfill--A municipalsolid waste landfill unit (Type IAE) at which less than 20 tons ofauthorized types of waste are disposed of daily based on an annualaverage and/or a Type IVAE landfill unit at which less than 20 tonsof authorized types of waste are disposed of daily based on an annualaverage. A Type IAE landfill permit may include additional authorizationfor a separate Type IVAE landfill unit. If a permit contains dualauthorization for Type IAE and Type IVAE landfill units, the permitmust designate separate areas for the units and where all disposalcells will be located within each unit.
(151)Solid waste--Garbage, rubbish, refuse, sludgefrom a wastewater treatment plant, water supply treatment plant, orair pollution control facility, and other discarded material, includingsolid, liquid, semi-solid, or contained gaseous material resultingfrom industrial, municipal, commercial, mining, and agricultural operationsand from community and institutional activities. The term does notinclude:
(A)solid or dissolved material in domestic sewage,or solid or dissolved material in irrigation return flows, or industrialdischarges subject to regulation by permit issued under Texas WaterCode, Chapter 26;
(B)soil, dirt, rock, sand, and other natural or man-madeinert solid materials used to fill land if the object of the fillis to make the land suitable for the construction of surface improvements;
(C)waste materials that result from activities associatedwith the exploration, development, or production of oil or gas orgeothermal resources and other substance or material regulated bythe Railroad Commission of Texas under Natural Resources Code, §91.101,unless the waste, substance, or material results from activities associatedwith gasoline plants, natural gas liquids processing plants, pressuremaintenance plants, or repressurizing plants and is hazardous wasteas defined by the administrator of the United States EnvironmentalProtection Agency under the federal Solid Waste Disposal Act, as amendedby the Resource Conservation and Recovery Act, as amended (42 UnitedStates Code (USC), §§6901 et seq. ); or
(D)post-use polymers or recoverable feedstocks thathave been converted through pyrolysis, gasification, solvolysis, ordepolymerization into valuable raw materials, valuable intermediateproducts, or valuable final products, which include plastic monomers,chemicals, waxes, lubricants, or chemical feedstocks pyrolysis, [processed through pyrolysis or gasification] that do not qualifyas hazardous waste under the Resource Conservation and Recovery Actof 1976 (42 USC, §§6901 et seq.[ ]).
(152)Solid waste management unit--A landfill, surfaceimpoundment, waste pile, furnace, incinerator, kiln, injection well,container, drum, salt dome waste containment cavern, land treatmentunit, tank, container storage area, or any other structure, vessel,appurtenance, or other improvement on land used to manage solid waste.
(153)Solvolysis--A manufacturingprocess that includes hydrolysis, aminolysis, ammonolysis, methanolysis,and glycolysis through which post-use polymers are purified with theaid of solvents while heated at low temperatures, pressurized, orboth heated at low temperatures and pressurized, to remove additivesand contaminants and make useful products, which include monomers,intermediates, valuable chemicals, plastic feedstocks, chemical feedstocks,and raw materials; and do not include crude oil, diesel, gasoline,diesel blend stock, gasoline blend stock, home heating oil, ethanol,or another fuel.
(154)[(153)] Source-separatedrecyclable material--Recyclable material from residential, commercial,municipal, institutional, recreational, industrial, and other communityactivities, that at the point of generation has been separated, collected,and transported separately from municipal solid waste (MSW), or transportedin the same vehicle as MSW, but in separate containers or compartments.Source-separation does not require the recovery or separation of non-recyclablecomponents that are integral to a recyclable product, including:
(A)the non-recyclable components of white goods, wholecomputers, whole automobiles, or other manufactured items for whichdismantling and separation of recyclable from non-recyclable componentsby the generator are impractical, such as insulation or electroniccomponents in white goods;
(B)source-separated recyclable material rendered unmarketableby damage during collection, unloading, and sorting, such as brokenrecyclable glass; and
(C)tramp materials, such as:
(i)glass from recyclable metal windows;
(ii)nails and roofing felt attached to recyclableshingles;
(iii)nails and sheetrock attached to recyclable lumbergenerated through the demolition of buildings; and
(iv)pallets and packaging materials.
(155)[(154)] Special waste--Anysolid waste or combination of solid wastes that because of its quantity,concentration, physical or chemical characteristics, or biologicalproperties requires special handling and disposal to protect the humanhealth or the environment. If improperly handled, transported, stored,processed, or disposed of or otherwise managed, it may pose a presentor potential danger to the human health or the environment. Specialwastes are:
(A)hazardous waste generated by a very smallquantity generator (VSQG) during a calendar month in which the VSQGdid not generate hazardous waste during an episodic event that maybe exempt from full regulation under Chapter 335, Subchapters A andC of this title (relating to Industrial Solid Waste and MunicipalHazardous Waste in General and General Standards Applicable to Generatorsof Hazardous Waste, respectively) [from conditionally exemptsmall-quantity generators that may be exempt from full controls underChapter 335, Subchapter N of this title (relating to Household HazardousWastes)];
(B)Class 1 industrial nonhazardous waste;
(C)untreated medical waste;
(D)municipal wastewater treatment plant sludges, othertypes of domestic sewage treatment plant sludges, and water-supplytreatment plant sludges;
(E)septic tank pumpings;
(F)grease and grit trap wastes;
(G)wastes from commercial or industrial wastewatertreatment plants; air pollution control facilities; and tanks, drums,or containers used for shipping or storing any material that has beenlisted as a hazardous constituent in 40 Code of Federal Regulations(CFR) Part 261, Appendix VIII but has not been listed as a commercialchemical product in 40 CFR §261.33(e) or (f);
(H)slaughterhouse wastes;
(I)dead animals;
(J)drugs, contaminated foods, or contaminated beverages,other than those contained in normal household waste;
(K)pesticide (insecticide, herbicide, fungicide, orrodenticide) containers;
(L)discarded materials containing asbestos;
(M)incinerator ash;
(N)soil contaminated by petroleum products, crudeoils, or chemicals in concentrations of greater than 1,500 milligramsper kilogram total petroleum hydrocarbons; or contaminated by constituentsof concern that exceed the concentrations listed in Table 1 of §335.521(a)(1)of this title (relating to Appendices);
(O)used oil;
(P)waste from oil, gas, and geothermal activitiessubject to regulation by the Railroad Commission of Texas when thosewastes are to be processed, treated, or disposed of at a solid wastemanagement facility authorized under this chapter;
(Q)waste generated outside the boundaries of Texasthat contains:
(i)any industrial waste;
(ii)any waste associated with oil, gas, and geothermalexploration, production, or development activities; or
(iii)any item listed as a special waste in this paragraph;
(R)lead acid storage batteries; and
(S)used-oil filters from internal combustion engines.
(156)[(155)] Stabilized sludges--Thosesludges processed to significantly reduce pathogens, by processesspecified in 40 Code of Federal Regulations Part 257, Appendix II.
(157)[(156)] Storage--The keeping,holding, accumulating, or aggregating of solid waste for a temporaryperiod, at the end of which the solid waste is processed, disposed,or stored elsewhere.
(A)Examples of storage facilities are collection pointsfor:
(i)only nonputrescible source-separated recyclablematerial;
(ii)consolidation of parking lot or street sweepingsor wastes collected and received in sealed plastic bags from suchactivities as periodic citywide cleanup campaigns and cleanup of rights-of-wayor roadside parks; and
(iii)accumulation of used or scrap tires prior totransportation to a processing or disposal facility.
(B)Storage includes operation of pre-collection orpost-collection as follows:
(i)pre-collection--that storage by the generator,normally on his premises, prior to initial collection; or
(ii)post-collection--that storage by a transporteror processor, at a processing facility, while the waste is awaitingprocessing or transfer to another storage, disposal, or recovery facility.
(158)[(157)] Storage battery--Asecondary battery, so called because the conversion from chemicalto electrical energy is reversible and the battery is thus rechargeable.Secondary or storage batteries contain an electrode made of spongelead and lead dioxide, nickel-iron, nickel-cadmium, silver-zinc, orsilver-cadmium. The electrolyte used is sulfuric acid. Other typesof storage batteries contain lithium, sodium-liquid sulfur, or chlorine-zincusing titanium electrodes.
(159)[(158)] Structural components--Liners,leachate collection systems, final covers, run-on/run-off systems,and any other component used in the construction and operation ofthe municipal solid waste landfill that is necessary for protectionof human health and the environment.
(160)[(159)] Surface impoundment--Anatural topographic depression, man-made excavation, or diked areaformed primarily of earthen materials (although it may be lined withman-made materials) that is designed to hold an accumulation of liquids;examples include holding, storage, settling, and aeration pits, ponds,and lagoons.
(161)[(160)] Surface water--Surfacewater as included in water in the state.
(162)[(161)] Tank--A stationarydevice, designed to contain an accumulation of solid waste, whichis constructed primarily of non-earthen materials (e.g., wood, concrete,steel, plastic) that provide structural support.
(163)[(162)] Tank system--Asolid waste storage or processing tank and its associated ancillaryequipment and containment system.
(164)[(163)] Transfer station--Afacility used for transferring solid waste from collection vehiclesto long-haul vehicles (one transportation unit to another transportationunit). It is not a storage facility such as one where individual residentscan dispose of their wastes in bulk storage containers that are servicedby collection vehicles.
(165)[(164)] Transportationunit--A truck, trailer, open-top box, enclosed container, rail car,piggy-back trailer, ship, barge, or other transportation vehicle usedto contain solid waste being transported from one geographical areato another.
(166)[(165)] Transporter--Aperson that collects, conveys, or transports solid waste; does notinclude a person transporting his or her household waste.
(167)[(166)] Trash--Same asRubbish.
(168)[(167)] Treatment--Sameas Processing.
(169)[(168)] Triple rinse--Torinse a container three times using a volume of solvent capable ofremoving the contents equal to 10% of the volume of the containeror liner for each rinse.
(170)[(169)] Uncompacted waste--Anywaste that is not a liquid or a sludge, has not been mechanicallycompacted by a collection vehicle, has not been driven over by heavyequipment prior to collection, or has not been compacted prior tocollection by any type of mechanical device other than small, in-housecompactor devices owned and/or operated by the generator of the waste.
(171)[(170)] Unified soil classificationsystem--The standardized system devised by the United States ArmyCorps of Engineers for classifying soil types.
(172)[(171)] Universal waste--Anyof the following hazardous wastes that are subject to the universalwaste requirements of Chapter 335, Subchapter H, Division 5 of thistitle (relating to Universal Waste Rule):
(A)batteries, as described in 40 Code of Federal Regulations(CFR) §273.2;
(B)pesticides, as described in 40 CFR §273.3;
(C)thermostats, as described in 40 CFR §273.4;
(D)paint and paint-related waste, as described in§335.262(b) of this title (relating to Standards for Managementof Paint and Paint-Related Waste); and
(E)lamps, as described in 40 CFR §273.5.
(173)[(172)] Unloading areas--Areasdesignated for unloading, including all working faces, active disposalareas, storage areas, and other processing areas.
(174)[(173)] Unstable area--Alocation that is susceptible to natural or human-induced events orforces capable of impairing the integrity of some or all of the landfillstructural components responsible for preventing releases from a landfill.Unstable areas can include poor foundation conditions, areas susceptibleto mass movements, and karst terrains.
(175)[(174)] Uppermost aquifer--Thegeologic formation nearest the natural ground surface that is an aquifer;includes lower aquifers that are hydraulically interconnected withthis aquifer within the facility's property boundary.
(176)[(175)] Vector--An agent,such as an insect, snake, rodent, bird, or animal capable of mechanicallyor biologically transferring a pathogen from one organism to another.
(177)Very small quantity generator--Agenerator who generates less than or equal to the following amountsof hazardous waste in a calendar month:
(A)100 kilograms (220 pounds) of non-acute hazardouswaste; and
(B)1 kilogram (2.2 pounds) of acute hazardous wastelisted in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e);and
(C)100 kilograms (220 pounds) of any residue or contaminatedsoil, water, or other debris resulting from the cleanup of a spill,into or on any land or water, of any acute hazardous waste listedin 40 CFR §261.31 or §261.33(e).
(178)[(176)] Washout--The carryingaway of solid waste by waters.
(179)[(177)] Waste acceptancehours--Those hours when waste is received from off-site.
(180)[(178)] Waste managementunit boundary--A vertical surface located at the perimeter of theunit. This vertical surface extends down into the uppermost aquifer.
(181)[(179)] Waste-separation/intermediate-processingcenter--A facility, sometimes referred to as a materials recoveryfacility, to which recyclable materials arrive as source-separatedmaterials, or where recyclable materials are separated from the municipalwaste stream and processed for transport off-site for reuse, recycling,or other beneficial use.
(182)[(180)] Waste-separation/recyclingfacility--A facility, sometimes referred to as a material recoveryfacility, in which recyclable materials are removed from the wastestream for transport off-site for reuse, recycling, or other beneficialuse.
(183)[(181)] Water in the state--Groundwater,percolating or otherwise, lakes, bays, ponds, impounding reservoirs,springs, rivers, streams, creeks, estuaries, marshes, inlets, canals,the Gulf of Mexico inside the territorial limits of the state, andall other bodies of surface water, natural or artificial, inland orcoastal, fresh or salt, navigable or non-navigable, and includingthe beds and banks of all watercourses and bodies of surface water,that are wholly or partially inside or bordering the state or insidethe jurisdiction of the state.
(184)[(182)] Water table--Theupper surface of the zone of saturation at which water pressure isequal to atmospheric pressure, except where that surface is formedby a confining unit.
(185)[(183)] Waters of the UnitedStates--All waters that are currently used, were used in the past,or may be susceptible to use in interstate or foreign commerce, includingall waters that are subject to the ebb and flow of the tide, withtheir tributaries and adjacent wetlands, interstate waters and theirtributaries, including interstate wetlands; all other waters suchas intrastate lakes, rivers, streams (including intermittent streams),mudflats, sandflats, and wetlands, the use, degradation, or destructionof which would affect or could affect interstate or foreign commerceincluding any such waters that are or could be used by interstateor foreign travelers for recreational or other purposes; from whichfish or shellfish are or could be taken and sold in interstate orforeign commerce; that are used or could be used for industrial purposesby industries in interstate commerce; and all impoundments of watersotherwise considered as navigable waters; including tributaries ofand wetlands adjacent to waters identified herein.
(186)[(184)] Wetlands--As definedin Chapter 307 of this title (relating to Texas Surface Water QualityStandards).
(187)[(185)] White goods--Discardedlarge household appliances such as refrigerators, stoves, washingmachines, or dishwashers.
(188)[(186)] Working face--Areasin a landfill where waste has been deposited for disposal but hasnot been covered.
(189)[(187)] Yard waste--Leaves,grass clippings, yard and garden debris, and brush, including cleanwoody vegetative material not greater than six inches in diameter,that results from landscaping maintenance and land-clearing operations.The term does not include stumps, roots, or shrubs with intact root balls.
§330.5.Classification of Municipal Solid Waste Facilities.
(a) The commission has classified all municipal solidwaste (MSW) facilities according to the method of processing or disposalof MSW. Subject to the limitations in §§330.15, 330.171,and 330.173 of this title (relating to General Prohibitions; Disposalof Special Wastes; and Disposal of Industrial Wastes), and with thewritten approval of the executive director, Type I, IV, V, and VIMSW facilities may also receive special wastes, including Class 1industrial solid waste and hazardous waste from very small quantitygenerators [conditionally exempt small quantity generators],if properly handled and safeguarded in the facility.
(1) MSW facility - Type I. A Type I landfill unit isthe standard landfill for the disposal of MSW. The commission mayauthorize the designation of special-use areas for processing, storage,and disposal or any other functions involving solid waste. Exceptas allowed in subsections (b) - (e) of this section, owners or operatorsshall follow the permit application requirements prescribed in SubchapterB of this chapter (relating to Permit and Registration ApplicationProcedures) and the minimum design and operational requirements ofSubchapter D of this chapter (relating to Operational Standards forMunicipal Solid Waste Landfill Facilities); [Subchapter F ofthis chapter (relating to Analytical Quality Assurance and QualityControl);] Subchapter G of this chapter (relating to SurfaceWater Drainage); Subchapter H of this chapter (relating to Liner SystemDesign and Operation); Subchapter I of this chapter (relating to LandfillGas Management); Subchapter J of this chapter (relating to GroundwaterMonitoring and Corrective Action); Subchapter K of this chapter (relatingto Closure and Post- Closure); Subchapter L of this chapter (relatingto Closure, Post-Closure, and Corrective Action Cost Estimates); SubchapterM of this chapter (relating to Location Restrictions); SubchapterT of this chapter (relating to Use of Land Over Closed Municipal SolidWaste Landfills); and Chapter 37, Subchapter R of this title (relatingto Financial Assurance for Municipal Solid Waste Facilities). Thoselandfill units meeting the requirements of subsection (b) of thissection shall be referred to as Type IAE landfill units. Type IAElandfill units are authorized to accept the same types of waste asType I landfill units subject to the limitations in §330.173of this title, and are exempt from Subchapters H and J of this chapter.Owners or operators of Type I landfill facilities that are authorizedto operate a Type IV cell or trench shall operate the cell or trenchin accordance with paragraph (2) of this subsection.
(2) MSW facility - Type IV. A Type IV landfill unitmay only accept brush, construction, or demolition waste, and/or rubbish.A Type IV landfill unit may not accept putrescible wastes, verysmall quantity generator [conditionally exempt small-quantitygenerator] waste, or household wastes. Except as allowed insubsection (b) of this section, owners or operators shall follow thepermit application requirements prescribed in Subchapter B of thischapter and the minimum design and operational standards prescribedin Subchapters D[, F,] and G of this chapter; §§330.331(d),330.335, 330.337, 330.339, and 330.341 of this title (relating toLiner System Design and Operation); §330.417 of this title (relatingto Groundwater Monitoring at Type IV Landfills); §§330.453,330.463(a), and 330.465 of this title (relating to Closure Requirementsfor Municipal Solid Waste Landfill Units that Stopped Receiving WastePrior to October 9, 1991, Type IV Landfills, and Municipal Solid WasteSites, Post-Closure Care Requirements, and Certification of Completionof Post-Closure Care) [330.465, and 330.467 of this title(relating to Closure and Post-Closure)]; Subchapter M of thischapter; and Chapter 37, Subchapter R of this title. Those landfillunits meeting the requirements of subsection (b) of this section shallbe referred to as Type IVAE landfill units. Type IVAE landfill unitsare authorized to accept the same types of waste as Type IV landfillunits and are exempt from Subchapters H and J of this chapter.
(3)MSW facility - Type V. Separate solid waste processingfacilities are classified as Type V. These facilities include processingplants that transfer, incinerate, shred, grind, bale, salvage, separate,dewater, reclaim, and/or provide other storage or processing of solidwaste. Owners or operators shall follow the minimum design and operationalrequirements prescribed in Subchapter E of this chapter (relatingto Operational Standards for Municipal Solid Waste Storage and ProcessingUnits); [Subchapter F of this chapter;] Subchapter G ofthis chapter; Subchapter H of this chapter, if required; SubchapterK of this chapter; Subchapter L of this chapter, if financial assuranceis required; Subchapter M of this chapter; and Chapter 37, SubchapterR of this title, except that owners and operators of recycling facilitieswho store combustible material are required to comply with Chapter37, Subchapter J of this title (relating to Financial Assurance forRecycling Facilities). Groundwater monitoring may be required by theexecutive director and shall be maintained in accordance with therequirements of Subchapter J of this chapter.
(4)MSW facility - Type VI. A Type VI facility or operationis a facility using a new or unproven method of managing or utilizingMSW, including resource and energy recovery projects for processesthat are not currently in use in Texas. The commission may limit thesize of these facilities until the method is proven. The minimum operationalstandards are prescribed in Subchapter E of this chapter.
(5)MSW facility - Type VII. A Type VII facility oroperation is a facility for the land management of sludges and/orsimilar wastes. Operational standards, depending on the particularwaste, facility purpose, and method of operation (land applicationfor beneficial use, land disposal to include landfilling and landtreatment, etc.) are contained in Chapter 312 of this title (relatingto Sludge Use, Disposal, and Transportation).
(6)MSW facility - Type VIII. Facilities for the managementof used or scrap tires are classified as Type VIII. Standards areprescribed in Chapter 328, Subchapter F of this title (relating toManagement of Used or Scrap Tires).
(7)MSW facility - Type IX. A Type IX facility is anenergy, material, gas recovery for beneficial use, or landfill miningfacility located within or adjacent to a closed disposal facility,an inactive portion of a disposal facility, or an active disposalfacility, used for extracting materials for energy and material recoveryor for gas recovery for beneficial use. Registration by rule requirementsfor facilities that recover landfill gas for beneficial use are prescribedin §330.9(j) [§330.9(k)] of this title(relating to Registration Required). Owners or operators of otherType IX facilities shall follow the registration application requirementsprescribed in Subchapter B of this chapter. All owners and operatorsshall follow the minimum design and operational requirements of SubchapterE of this chapter; §330.459 of this title (relating to ClosureRequirements for Municipal Solid Waste Storage and Processing Units);§330.461 of this title (relating to Certification of Final FacilityClosure); §330.505 of this title (relating to Closure Cost Estimatesfor Storage and Processing Units); and Chapter 37, Subchapter R ofthis title. Waste mining activities shall also follow the minimumdesign and operation requirements of §330.149 of this title (relatingto Odor Management Plan); §330.151 of this title (relating toDisease Vector Control); §330.165 of this title (relating toLandfill Cover); and §330.167 of this title (relating to PondedWater). Owners or operators of an MSW landfill facility applying fora non-beneficial use gas control system for any area within the facility'spermit boundary shall apply for a permit modification under §305.70of this title (relating to Municipal Solid Waste Permit and RegistrationModifications). Type IX facility permits and registrations previouslyissued for the recovery and beneficial use of landfill gas are consideredto remain valid under applicable permit provisions until amended,modified, or revoked by the commission. The owner or operator mustsubmit all information necessary to complete the air quality reviewas prescribed by the commission and be approved by the executive directorprior to the Type IX registration by rule becoming effective.
(b)Owners or operators of a Type IAE or Type IVAElandfill facility may qualify for an arid exemption, as follows.
(1)Owners or operators of new, existing, and lateralexpansions of Type IAE or Type IVAE landfill units may qualify foran arid exemption and be exempt from Subchapters H and J of this chapter,provided all of the following conditions are met:
(A)the facility disposes less than 20 tons per daybased on an annual average of authorized waste in a Type IAE landfillunit and/or less than 20 tons per day based on an annual average ofauthorized waste in a Type IVAE landfill unit for a total waste acceptancerate less than 40 tons per day for the facility considering all wastestreams based on an annual average;
(B)there is no evidence of existing groundwater contaminationfrom the facility;
(C)the facility serves a community that has no practicablewaste management alternative; and
(D)the facility is located in an area that receivesless than or equal to 25 inches of annual average precipitation basedon precipitation data from the nearest official precipitation recordingstation for the most recent 30-year reporting period.
(2)Requests for exemptions under §330.63(d)(5)of this title (relating to Contents of Part III of the Application)may be approved administratively by the executive director, upon demonstrationof compliance with all applicable criteria. The executive directormay deny an exemption request if the available information indicatesthat granting the exemption could result in a substantial threat ofgroundwater contamination. Existing Type IAE landfill permits, whichinclude a 20 tons per day waste disposal limit, may be revised viaa major amendment to allow for disposal of an additional less than20 tons of authorized waste in a Type IVAE landfill unit located ina separate area of the same facility. Existing Type IAE landfill permits,which do not include a waste disposal limit or include a waste disposallimit in excess of limits allowed for Type IAE landfill units, maybe modified consistent with the restrictions for small MSW landfills.Within 180 days of the effective date of the comprehensive rule revisionsin this chapter as adopted in 2006 (2006 Revisions), owners and operatorsof such a permit shall comply with the waste acceptance rate limitfor a Type IAE landfill unit or apply to modify such permit to includea Type IVAE landfill unit located in a separate area of the facility.Such permits remain valid until a final decision is made on the modificationapplication. Such a modification must be processed in accordance with§305.70(l) of this title as a modification subject to publicnotice. Such a modification application must be submitted in conjunctionwith a corresponding application to modify the revised estimated wasteacceptance rate under §330.125(h) of this title (relating toRecordkeeping Requirements).
(3)Owners or operators may appeal denials of a requestfor exemption to the commission for decision.
(4)If the owner or operator of a new, existing, orlateral expansion of a Type IAE or Type IVAE landfill facility whohas previously asserted eligibility for the arid exemption has knowledgeor becomes aware of groundwater contamination from the facility withina one-mile radius of the unit, the facility no longer meets the definitionof a Type IAE or Type IVAE landfill facility, the waste reductionprogram is ineffective (based upon an evaluation of trends establishedafter a minimum period of a year), or a practicable alternative becomesavailable, the owner or operator shall notify in writing the executivedirector of such condition(s) and thereafter comply with SubchapterB, Subchapter H, and Subchapter J of this chapter on a schedule specifiedby the executive director.
(5)The executive director may consider the economicinvestment made by the owner or operator in establishing the schedulefor compliance.
(6)The minimum time allowed for compliance necessitatedby loss of Type IAE or Type IVAE landfill facility status or availabilityof a practicable alternative shall be 18 months.
(7)A Type IAE or Type IVAE landfill facility thatmeets the requirements of this subsection shall maintain the integrityof any existing on-site groundwater monitor wells and make them availableto the executive director for the collection of groundwater samples.
(c)For MSW landfills that stopped receiving wastebefore October 9, 1991, and unauthorized MSW sites, the closure provisionsof §330.453 of this title (relating to Closure Requirements forMunicipal Solid Waste Landfill Units that Stopped Receiving WastePrior to October 9, 1991, Type IV Landfills, and Municipal Solid WasteSites) apply. If not previously submitted, owners or operators shallsubmit a closure report that documents that MSW landfill units orunauthorized MSW sites, or portions thereof, have received final cover.
(d)MSW landfill units that receive waste after October9, 1991, but stop receiving waste before October 9, 1993, are subjectto the final cover requirements specified in §330.455 of thistitle (relating to Closure Requirements for Municipal Solid WasteLandfill Units that Received Waste on or after October 9, 1991, butStopped Receiving Waste Prior to October 9, 1993). The final covermust be installed and certified in accordance with the requirementscontained in §§330.451, 330.453, 330.455, and 330.457 ofthis title (relating to Closure and Post-Closure). Owners or operatorsof MSW landfill units described in this subsection that fail to completecover installation and certification within the time limits specifiedin Subchapter K of this chapter will be subject to all the requirementsof these regulations.
(e)All MSW landfill units that receive waste on orafter October 9, 1993, must comply with all requirements of theseregulations, unless otherwise specified.
§330.7.Permit Required.
(a) Except as provided in §§330.9, 330.11,330.13, or 330.25 of this title (relating to Registration Required;Notification Required; Waste Management Activities Exempt from Permitting,Registration, or Notification; and Relationship with County LicensingSystem), no person may cause, suffer, allow, or permit any activityof storage, processing, removal, or disposal of any solid waste unlesssuch activity is authorized by a permit or other authorization fromthe commission. In the event this requirement is violated, the executivedirector may seek recourse against not only the person that stored,processed, or disposed of the waste but also against the generator,transporter, owner or operator, or other person who caused, suffered,allowed, or permitted its waste to be stored, processed, or disposed.No person may commence physical construction of a new municipal solidwaste (MSW) management facility, a vertical expansion, or a lateralexpansion without first having submitted a permit application in accordancewith §§330.57, 330.59, 330.61, 330.63, and 330.65 of thistitle (relating to Permit and Registration Applications for MunicipalSolid Waste Facilities; Contents of Part I of the Application; Contentsof Part II of the Application; Contents of Part III of the Application;and Contents of Part IV of the Application, respectively) and receiveda permit from the commission, except as provided otherwise in this section.
(b) A separate permit is required for the storage,transportation, or handling of used oil mixtures collected from oil/waterseparators. Any person that intends to conduct such activity shallcomply with the regulatory requirements of Chapter 324 of this title(relating to Used Oil Standards).
(c) Permits by rule may be granted for persons thatcompact or transport waste in enclosed containers or enclosed transportationunits to a Type IV facility.
(1) A permit by rule is granted for a generator operatinga stationary compactor that is only used to compact waste to be disposedof at a Type IV landfill, if all of the following conditions are met.
(A) The generator submits the following informationand any requested additional information on forms provided by theexecutive director:
(i) generator contact person, company name, mailingaddress, street address, city, state, ZIP code, and telephone number;
(ii)contract renewal date, if applicable;
(iii)rated compaction capability in pounds per cubicyard;
(iv)container size;
(v)description of waste stream to enter compactor;
(vi)receiving MSW Type IV disposal facility name,permit number, mailing address, street address, city, state, ZIP code,telephone number, and contact person; and
(vii)a certification from the generator that statesthe following: I, (name) ______________________________, (title) _________________________________________of (company name) __________________, located at (street address)__________________________ in (city) ___________________________________________,certify that the contents of the compactor located at the locationstated herein are free of and shall be maintained free of putrescible,hazardous, infectious, and any other waste not allowed in an MSW TypeIV landfill.
(B)The generator submits a $75 fee along with theclaim for the permit by rule.
(C)The generator complies with the operational requirementsof §330.215 of this title (relating to Requirements for StationaryCompactors).
(D)A stationary compactor permit by rule expires afterone year. The generator must submit an annual renewal fee in the amountof $75. Failure to timely pay the annual fee eliminates the optionof disposal of these wastes at a Type IV landfill until the generatorclaims a new or renewed permit by rule.
(2)A permit by rule is granted for transporters usingenclosed containers or enclosed vehicles to collect and transportbrush, construction or demolition wastes, and rubbish along specialcollection routes to MSW Type IV landfill facilities if all of thefollowing conditions are met.
(A)The owner or operator seeking a special collectionroute permit by rule submits to the executive director the followinginformation and any requested additional information on forms providedby the executive director:
(i)name of owner and operator, mailing address, streetaddress, city, state, ZIP code, name and title of a contact person,and telephone number;
(ii)receiving MSW Type IV disposal facility name,permit number, mailing address, street address, city, state, ZIP code,telephone number, and contact person;
(iii)information on each transportation unit, including,at a minimum, license number, vehicle identification number, yearmodel, make, capacity in cubic yards, and rated compaction capabilityin pounds per cubic yard;
(iv)route information, which shall include as a minimumthe collection frequency, the day of the week the route is to be collected,and the day and time span within which the route is to arrive at theMSW Type IV landfill;
(v)a description of the wastes to be transported;
(vi)an alternative contingency disposal plan to includealternate trucks to be used or alternative disposal facilities; and
(vii)a signed and notarized certification from theowner or operator that states the following: I, (name) _______, (title)_______, of _______ operating in ______ County, certify that the contentsof the vehicles described above will be free of putrescible, household,hazardous, infectious, or any other waste not allowed in an MSW TypeIV landfill.
(B)The transporter submits a $100 per vehicle feealong with the claim for a permit by rule.
(C)The transporter documents each load delivered witha trip ticket form provided by the executive director, and providesthe trip ticket to the landfill operator prior to discharging theload.
(D)A special collection route permit by rule expiresafter one year. The owner or operator must submit an annual renewalfee in the amount of $100 per vehicle. Failure to timely pay the annualfee eliminates the option of disposal of these wastes at a Type IVlandfill until the owner or operator claims a new or renewed permitby rule.
(E)This paragraph does not apply if the waste loadis from a single collection point that is a stationary compactor authorizedin accordance with paragraph (1) of this subsection.
(3) Revision requirements for stationary compactorpermits or special collection route permits by rule identified inparagraphs (1) and (2) of this subsection are as follows.
(A) An update must be submitted if any informationwithin the original permit by rule submittal changes.
(B) A submittal to update an existing permit by rulemust include all of the same documentation required for an originalpermit by rule submittal.
(d) A major permit amendment, as defined by §305.62of this title (relating to Amendments), is required to reopen a TypeI, Type IAE, Type IV, or Type IVAE MSW facility permitted by the commissionor any of its predecessor or successor agencies that has either stoppedaccepting waste, or only accepted waste in accordance with an emergencyauthorization, for a period of five years or longer. The MSW facilitiescovered by this subsection may not be reopened to accept waste againunless the permittee demonstrates compliance with all applicable requirementsof the Resource Conservation and Recovery Act, Subtitle D and theimplementing Texas state regulations. If an MSW facility was subjectto a contract of sale on January 1, 2001, the scope of any publichearing held on the permit amendment required by this subsection islimited to land use compatibility, as provided by §330.57(a)of this title. This subsection does not apply to any MSW facilitythat has received a permit but never received waste, or that receivedan approved Subtitle D permit modification before September 1, 2001.
(e) A permit by rule is granted for an animal crematorythat meets the following criteria. For facilities that do not meetall the requirements of this subsection, the owner or operator shallsubmit a permit application under §§330.57, 330.59, 330.61,330.63, and 330.65 of this title and obtain a permit. To qualify fora permit by rule under this subsection, the following requirementsmust be met.
(1) General prohibitions. An animal crematory facilityshall comply with §330.15(a) of this title (relating to General Prohibitions).
(2) Incineration limits. Incineration of carcassesshall be limited to the conditions specified in §106.494 of thistitle (relating to Non-commercial Incinerators and Crematories) [(relating to Pathological Waste Incinerators (Previously SE 90))].The facility shall not accept animal carcasses that weigh more thanthe capacity of the largest incinerator at the facility and shallnot dismember any carcasses during processing.
(3) Ash control. Ash disposal must be at an authorizedfacility unless the ash is returned to the animal owner or sent toa pet cemetery. Ash shall be stored in an enclosed container thatwill prevent release of the ash to the environment. There shall beno more than 2,000 pounds of ash stored at an animal crematory atany given time.
(4) Air pollution control. Air emissions from the facilityshall not cause or contribute to a condition of air pollution as definedin Texas Clean Air Act, §382.003. All animal crematories, priorto construction or modification, must have an air permit issued underChapter 116 of this title (relating to Control of Air Pollution byPermits for New Construction or Modification), or qualify for a permitby rule under §106.494 of this title.
(5) Fire protection. The facility shall prepare, maintain,and follow a fire protection plan. This fire protection plan shalldescribe fire protection resources (a local fire department, firehydrants, fire extinguishers, water tanks, water well, etc.), andemployee training and safety procedures. The fire protection planshall comply with local fire codes.
(6) Storage limits. Carcasses must be incinerated withintwo hours of receipt, unless stored at or below a temperature of 29degrees Fahrenheit. Storage of carcasses shall be in a manner thatminimizes the release of odors. Storage of carcasses shall be limitedto the lesser of 3,200 pounds or the amount that can be incineratedat the maximum loading rate for the incinerators at the facility ina two-day period.
(7) Unauthorized waste. Only carcasses or animal parts,with any associated packaging, shall be processed. Carcasses shallnot be accepted in packaging that includes any chlorinated plastics.Carcasses or animal parts that are either hazardous waste or medicalwaste are prohibited.
(8) Cleaning. Storage and processing units must beproperly cleaned on a routine basis to prevent odors and the breedingof flies.
(9) Nuisance prevention. The facility shall be designedand operated in a manner so as to prevent nuisance conditions, including,but not limited to, dust from ashes, disease vectors, odors, and liquidsfrom spills, from being released from the property boundary of theauthorized facility.
(10) Diseased animals. The facility shall be equippedwith appropriate protective equipment and clothing for personnel handlingdiseased animals that may be received at the facility. Facility ownersor operators must inform customers and local veterinarians of theneed to identify diseased animals for the protection of personnelhandling the animals.
(11) Buffer zone. An animal crematory, including unloadingand storage areas, constructed after March 2, 2003, must be at least50 feet from the property boundary of the facility.
(12) Operating hours. A crematory shall operate withinthe time frames allowed by §111.129 of this title (relating toOperating Requirements).
(13) Documentation. The operator of an animal crematoryshall document the carcasses' weight, date and time when carcassesare received, and when carcasses are loaded into the incinerator.A separate entry in the records for loading into the incinerator isnot required if a carcass is loaded within two hours of receipt. Thisinformation will be maintained in records on site.
(14) Breakdown. The facility is subject to §330.241of this title (relating to Overloading and Breakdown).
(15) Records management. The owner or operator mustretain records as follows:
(A) maintain a copy of all requirements of this subsectionthat apply to the facility;
(B) maintain records for the previous consecutive 12-monthperiod containing sufficient information to demonstrate compliancewith all requirements of this subsection;
(C) keep all required records at the facility; and
(D) make the records available upon request to personnelfrom the commission or from local governments with jurisdiction overthe facility.
(16) Fees. An animal crematory facility authorizedunder this section is exempt from the fee requirements of SubchapterP of this chapter (relating to Fees and Reporting).
(17) Other requirements. No other requirements underthis chapter are applicable to a facility that meets all of the requirementsof this subsection.
(f) A permit by rule is granted for a dual chamberincinerator if the owner or operator complies with §106.491 ofthis title (relating to Dual-Chamber Incinerators).
(g) A permit by rule is granted for an air curtainincinerator if the owner or operator complies with §106.496 ofthis title (relating to Air Curtain Incinerators). An air curtainincinerator may not be located within 300 feet of an active or closedMSW landfill unit boundary.
(h) A standard air permit is granted for facilitiesthat comply with Subchapter U of this chapter (relating to StandardAir Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations).
(i) A permit by rule is granted for a period of upto five years to a county or municipality with a population of 12,000people or less to dispose of demolition waste from properties withnuisance or abandoned buildings.
(1) Requirements. The following conditions must be met.
(A) Form submittal. The county or municipality submitsa form provided by the commission to the executive director for reviewand approval before construction begins.
(B) Notice to regional office. The county or municipalitynotifies the applicable commission regional office of the intent todispose of waste under this authorization at least 48 hours priorto accepting the first load of waste.
(C) Facility location. The location where disposalwill occur:
(i) is owned or controlled by the county or municipality, and
(ii) receives less than or equal to 25 inches averageannual precipitation as determined from precipitation data for thenearest official precipitation recording station for at least themost recent 30-year reporting period or by another method approvedby the executive director.
(D) Sources of waste. The properties on which nuisanceand abandoned buildings are located have been acquired by the countyor municipality by means of bankruptcy, tax delinquency, or condemnation,and the previous owners are not financially capable of paying thecosts of the disposal of demolition waste at a permitted solid wastedisposal facility, including transportation of the waste to the facility.
(E) Waste acceptance.
(i) Prior to demolition, structures are surveyed andabated, if required, for asbestos-containing materials in accordancewith 25 TAC Chapter 296 [25 TAC Chapter 295, SubchapterC] (relating to Texas Asbestos Health Protection).
(ii) The facility may accept non-regulated asbestos-containingmaterials (non-RACM) for disposal. The wastes are placed on the activeworking face and covered at the end of the operating day with at leastsix inches of soil. Under no circ*mstances may any of the materialcontaining non-RACM be placed on a surface that is subject to vehiculartraffic or disposed of by any other means by which the material couldbe crumbled into a friable state.
(iii) The facility may accept regulated asbestos-containingmaterials (RACM) if the following conditions are met.
(I) The county or municipality notifies the executivedirector on a form provided by the commission in accordance with subparagraph(A) of this paragraph.
(II) All waste trenches are identified as receivingRACM, and deed records required under subparagraph (Q) of this paragraphinclude an indication that the waste trench(es) received RACM.
(III) RACM is transported and received at the facilityin tightly closed and unruptured containers or bags or wrapped withat least six-mil polyethylene.
(IV) Bags or containers holding RACM are carefullyunloaded and placed in the final disposal location. RACM is then coveredimmediately with at least six inches of soil. Care is taken duringunloading and placement of RACM and during application of the coverso that the bags or containers are not ruptured.
(iv) Waste is limited to the abandoned or nuisancebuildings and materials from the property on which the buildings arelocated. All waste disposed under this authorization must meet thelimitations of §330.5(a)(2) of this title (relating to Classificationof Municipal Solid Waste Facilities) and may not include waste prohibitedunder §330.15(e) of this title.
(F) Access control. Access to the disposal facilityis controlled by means of fences, other artificial barriers, naturalbarriers, or a combination of these methods, and includes a locking gate.
(G) Buffers and easem*nts. The county or municipalitymaintains a minimum distance of 50 feet as a buffer between the permitboundary and waste storage, processing and disposal areas. No disposaloccurs within a utility or pipeline easem*nt or within 25 feet ofthe center of a utility or pipeline easem*nt.
(H) Below-grade placement. Waste is placed only belowgrade. The top of final cover is placed at pre-existing grade or upto three feet above pre-existing grade to ensure that natural drainagepatterns are not altered and ponding of water over waste is prevented.
(I) Weekly cover. Waste is covered at least weeklywith six inches of earthen material not previously mixed with waste,or by tarps. Use of tarps as cover is limited to a seven-day periodafter which the county or municipality must replace the tarp witheither waste or a six-inch layer of earthen material not previouslymixed with waste. Tarps may not be used in place of soil cover requirementsrelating to non-RACM and RACM in subparagraph (E)(ii) and (iii) ofthis paragraph. Any trench that has received waste but will be inactivefor more than 180 days receives intermediate cover in accordance withsubparagraph (J) of this paragraph, or final cover in accordance withsubparagraph (P) of this paragraph.
(J) Intermediate cover. Waste is covered, includingany soil weekly cover, with twelve inches of well compacted earthenmaterial not previously mixed with waste.
(K) Maximum volume. The design waste disposal volumeis less than 2.5 million cubic meters in accordance with §106.534(3)of this title (relating to Municipal Solid Waste Landfills and Transfer Stations).
(L) Facility signs. At all entrances through whichwaste is received, the facility conspicuously displays a sign withletters at least three inches in height providing a statement thatthe facility is "NOT FOR PUBLIC USE," an emergency 24-hour contactnumber that reaches an individual with the authority to obligate thefacility at all times that the facility is not in operation, and thelocal emergency fire department number.
(M) Stormwater and contaminated water. The county ormunicipality constructs berms to divert the 25-year/24-hour stormevent from entering excavations containing waste. Water that has contactedwaste is managed as contaminated water and disposed at an authorizedtreatment facility.
(N) Reporting. The county or municipality, while notrequired to provide quarterly reporting, provides annual reportingin accordance with the annual reporting provisions of §330.675(a)of this title (relating to Reports).
(O) Reauthorization. Before reaching the permit byrule term limit of five years, the county or municipality may requestreauthorization under the permit by rule by submitting a form thatis current at the time of reauthorization, provided by the commissionin accordance with subparagraph (A) of this paragraph, to the executivedirector at least 14 days before the end of the permit term.
(P) Final cover. The following conditions are met.
(i) Within 60 days after a trench reaches its capacityor waste deposition activities are complete in a trench, the countyor municipality installs final cover over waste in the trench. Finalcover shall be composed of no less than two feet of soil. The first18 inches or more of cover shall be of compacted clayey soil, classificationsand clay (SC) or low plasticity clay (CL) as defined in the "UnifiedSoils Classification System" developed by the United States Army Corpsof Engineers, and placed and compacted in layers of no more than sixinches to minimize the potential for water infiltration. A high plasticityclayey (CH) soil may be used; however, this soil may experience excessivecracking and shall therefore be covered by a minimum of 12 inchesof topsoil to retain moisture. Other types of soil may be used withprior written approval from the executive director. The final sixinches of cover shall be of suitable topsoil that is capable of sustainingnative plant growth and shall be seeded or sodded as soon as practicablefollowing the application of the final cover in order to minimize erosion.
(ii) The trench final cover procedures listed in clause(i) of this subparagraph are completed before facility closure, asdescribed in subparagraph (Q) of this paragraph. If these procedurescannot be performed before the permit by rule term limit is reached,the county or municipality submits a current application form forreauthorization of the permit by rule to the executive director atleast 14 days before the end of the permit term.
(Q) Facility closure. The county or municipality notifiesthe executive director and the applicable regional office at least60 days before the anticipated closure date of the facility. Withinten days after closure, submit to the executive director by registeredmail a certified copy of an "affidavit to the public" in accordancewith the requirements of §330.19 of this title (relating to DeedRecordation). In addition, record a certified notation of the deedto the facility property, or on some other instrument that is normallyexamined during title search, that will in perpetuity notify any potentialpurchaser of the property that the land has been used as a landfillfacility and use of the land is restricted. Submit a certified deedto the executive director.
(2) Other provisions. The following provisions alsoapply to this authorization.
(A) Processing. This permit by rule also authorizesthe processing of waste destined for the disposal unit. Authorizedprocessing is limited to volume reduction, such as chipping or grinding,but not burning. Processing must occur within the permit boundaryand may not occur within a buffer zone or right-of-way. Tires, RACMand non-RACM may not be processed. If required, the county or municipalitymust obtain authorization for air emissions resulting from this processing.
(B) Fees. Waste that is disposed under this authorizationis not subject to the fee requirements of Subchapter P of this chapter.
(C) Other requirements. No other requirements underthis chapter are applicable to a facility that meets all the requirementsof this subsection.
§330.13.Waste Management Activities Exempt from Permitting, Registration, or Notification.
(a) A permit, registration, notification, or otherauthorization is not required for the disposal of up to 2,000 poundsper year of litter or other solid waste generated by an individualon that individual's own land and is not required to comply with §330.19of this title (relating to Deed Recordation) provided that:
(1) the litter or waste is generated on land that theindividual owns;
(2) the litter or waste is not generated as a resultof an activity related to a commercial purpose;
(3) the disposal occurs on land that the individual owns;
(4) the disposal is not for a commercial purpose;
(5) the waste disposed of is not hazardous waste orindustrial waste;
(6) the waste disposal method complies with Chapter111, Subchapter B of this title (relating to Outdoor Burning); and
(7) the waste disposal method does not contribute toa nuisance and does not endanger the public health or the environment.Exceeding 2,000 pounds per individual's residence per year is consideredto be a nuisance.
(b) A permit, registration, notification, or otherauthorization is not required for the disposal of animal carcassesfrom government roadway maintenance where:
(1) either of the following:
(A) the animals were killed on county or municipalroadways and the carcasses are buried on property owned by the entitythat is responsible for road maintenance; or
(B) the animals were killed on state highway rights-of-wayand the carcasses are disposed of by the Texas Department of Transportationby burying the carcasses on state highway rights-of-way; and
(2) the waste disposal method does not contribute toa nuisance and does not endanger the public health or the environment; and
(3) the animal carcasses are covered with at leasttwo feet of soil within 24 hours of collection in accordance with§330.171(c)(2) of this title (relating to Disposal of Special Wastes).
(c) A permit, registration, notification, or otherauthorization is not required for veterinarians performing activitiesas authorized by Texas Occupations Code, §801.361, Disposal ofAnimal Remains. Disposal by burning under this section must complyonly with §111.209(3) of this title (relating to Exception forDisposal Fires).
(d) Except as required by §330.7(c)(2) and §330.9(a)of this title (relating to Permit Required; and Registration Required),a permit, registration, notification, or other authorization is notrequired for transporters of municipal solid waste.
(e) A permit, registration, notification, or otherauthorization is not required for a collection point for parking lotor street sweepings or wastes collected and received in sealed plasticbags from such activities as periodic city-wide cleanup campaignsand cleanup of rights-of-way or roadside parks.
(f) A permit, registration, notification, or otherauthorization is not required from a car wash facility for dryinggrit trap waste as long as these wastes are dried and disposed ofin compliance with applicable federal, state, and local regulations.Grit trap waste from car wash facilities may be transported for dryingpurposes to other property if the car wash facility and the propertywith the drying bed have the same owner and if the facilities arelocated within 50 miles of each other. This subsection is not intendedto preempt or supersede local government regulation of grit trap waste-dryingfacilities. Drying facilities must comply with Chapter 116 of thistitle (relating to Control of Air Pollution by Permits for New Constructionor Modification) if applicable.
(g) A permit, registration, notification, or otherauthorization is not required for an advanced recycling facilitythat processes recoverable feedstocks into valuable raw materials,valuable intermediate products, or valuable final products throughpyrolysis, gasification, solvolysis, or depolymerization [agasification or pyrolysis facility]. The owner or operator ofan advanced recycling facility shall keep records onsite to demonstrate:
(1) that the primary function of the facility is toconvert materials into products for subsequent beneficial use;and [that have a resale value greater than the cost ofconverting the materials for subsequent beneficial use. The demonstrationmay consist of the following information:]
[(A) documentation to support allcosts associated with processing materials versus the resale valuefor the intended beneficial use; or]
[(B) published indices or buyer contracts,proposed turnover rates, and calculations to show a resale value greaterthan the costs associated with processing materials.]
(2) that all solid waste generated from convertingmaterials has been disposed of at a disposal facility authorized bythe commission to accept and dispose of the solid waste, with theexception of small amounts of solid waste that may be inadvertentlyand unintentionally disposed of in another manner. Such documentationshall include a description of the type and volume of solid wastegenerated, the date(s) and volumes of waste transported off-site,the name and permit or other authorization number of each transporterand authorized disposal facility, and the address of each authorizeddisposal facility [identification of the disposal site(s)authorized by the commission where all solid waste generated fromconverting the materials will be disposed of].
§330.15.General Prohibitions.
(a) A person may not cause, suffer, allow, or permitthe collection, storage, transportation, processing, or disposal ofmunicipal solid waste (MSW), or the use or operation of a solid wastefacility to store, process, or dispose of solid waste, or to extractmaterials under Texas Health and Safety Code, §361.092, in violationof the Texas Health and Safety Code, or any regulations, rules, permit,license, order of the commission, or in such a manner that causes:
(1) the discharge or imminent threat of discharge ofMSW into or adjacent to the waters in the state without obtainingspecific authorization for the discharge from the commission;
(2) the creation and maintenance of a nuisance; or
(3) the endangerment of the human health and welfareor the environment.
(b) MSW land disposal facilities (Types I, IAE, IV,IVAE, and VI) failing to satisfy the applicable requirements of thischapter, unless exempted by this chapter, are considered open dumpsfor purposes of state solid waste management planning under the ResourceConservation and Recovery Act and are prohibited under Resource Conservationand Recovery Act, §4005(a).
(c) Except as otherwise authorized by this chapter,a person may not cause, suffer, allow, or permit the dumping or disposalof MSW without the written authorization of the commission.
(d) The open burning of solid waste, except for theinfrequent burning of waste generated by land-clearing operations,agricultural waste, silvicultural waste, diseased trees, emergencycleanup operations as authorized by the commission or executive directoras appropriate, is prohibited at any MSW landfill. The operation ofan air curtain incinerator as allowed in §330.7(g) of this title(relating to Permit Required) other than for the exceptions notedin the previous sentence, is prohibited.
(e) The following wastes are prohibited from disposalin any MSW facility.
(1) A lead acid storage battery shall not be intentionallyor knowingly offered by a generator or transporter for disposal atan MSW landfill or incinerator, and/or shall not be intentionallyor knowingly accepted for disposal at an MSW landfill or incineratorpermitted under this chapter.
(A) Each battery improperly disposed of constitutesa separate violation and offense.
(B) A person that violates the provisions of this paragraphis subject to the criminal and/or civil penalties found in the TexasHealth and Safety Code, as amended.
(2) Do-it-yourself used motor vehicle oil shall notbe intentionally or knowingly offered by a generator or transporterfor disposal at an MSW landfill or MSW incinerator, either by itselfor mixed with other solid waste, and/or shall not be intentionallyor knowingly accepted for disposal at an MSW landfill or MSW incineratorpermitted under this chapter.
(A) It is an exception to this subsection if the mixingor commingling of used oil with solid waste that is to be disposedof in a landfill is incidental to, and the unavoidable result of,the mechanical shredding of motor vehicles; appliances; or other itemsof scrap, used, or obsolete metals.
(B) A person that violates the provisions of this paragraphis subject to the criminal and/or civil penalties found in the TexasHealth and Safety Code, as amended.
(3) Used oil filters from internal combustion enginesshall not be offered for landfill disposal by any generator and shallnot be intentionally or knowingly accepted for disposal at a landfillpermitted under this chapter.
(4) Whole used or scrap tires shall not be acceptedfor disposal or disposed of in any MSW landfill, unless processedprior to disposal in a manner acceptable to the executive director.
(5) Refrigerators, freezers, air conditioners, andany other items containing chlorinated fluorocarbon (CFC) must behandled in accordance with 40 Code of Federal Regulations §82.156 [§82.156(f)], as amended.
(6) Except as allowed in §330.177 of this title(relating to Leachate and Gas Condensate Recirculation), liquid wasteas defined in §330.3 of this title (relating to Definitions)and as described in subparagraphs (A) and (B) of this paragraph belowshall not be disposed of in any MSW landfill unit.
(A) Bulk or noncontainerized liquid waste shall notbe accepted for disposal or disposed of in an MSW landfill unlessthe waste is household waste other than septic waste.
(B) Containers holding liquid waste shall not be acceptedfor disposal or disposed of in an MSW landfill unless:
(i) the container is a small container similar in sizeto that normally found in household waste;
(ii) the container is designated to hold liquids foruse other than storage; or
(iii) the waste is household waste.
(7) Regulated hazardous waste as defined in §330.3of this title shall not be accepted at an MSW facility.
(8) Polychlorinated biphenyls (PCB) wastes, as definedunder 40 Code of Federal Regulations Part 761, shall not be acceptedfor disposal or disposed of in an MSW facility unless authorized bythe United States Environmental Protection Agency and the MSW permit.
(9) Radioactive materials as defined in Chapter 336of this title (relating to Radioactive Substance Rules), except asauthorized in Chapter 336 of this title or that are subject to anexemption of the Department of State Health Services shall not beaccepted at an MSW facility.
(f) MSW facilities receiving sewage sludge and failingto satisfy the criteria of this chapter violate Federal Clean WaterAct, §309 and §405(e).
(g) The drilling of any test borings, for any reason,through previously deposited waste or cover material without priorwritten authorization from the executive director is prohibited.
(h) An MSW facility shall not cause:
(1) a discharge of solid wastes or pollutants adjacentto or into waters of the state, including wetlands, that is in violationof the requirements of Texas Water Code, §26.121;
(2) a discharge of pollutants into waters of the UnitedStates, including wetlands, that violates any requirements of theFederal Clean Water Act, including, but not limited to, the NationalPollutant Discharge Elimination System requirements, under §402,as amended, or Texas Pollutant Discharge Elimination System requirements;
(3) a discharge of dredged or fill material to watersof the United States, including wetlands, that is in violation ofthe requirements under Federal Clean Water Act, §404, as amended; and
(4) a discharge of a nonpoint source pollution intowaters of the United States, including wetlands, that violates anyrequirement of an area-wide or state-wide water quality managementplan that has been approved under Federal Clean Water Act, §208or §319, as amended.
(i) Processing of liquid waste as defined in §330.3of this title, other than that incidental to transfer and storage,at a transfer station without a specific Type V processing authorizationis prohibited.
§330.23.Relationships with Other Governmental Entities.
(a) Texas Department of Transportation (TxDOT). Theexecutive director shall coordinate with TxDOT on the review of allpermit applications for municipal solid waste (MSW) land disposalfacilities existing or proposed within 1,000 feet of an interstateor primary highway to determine the need for screening or specialoperating requirements. When primary access to an MSW disposal facilityis provided by state-maintained streets or highways, the executivedirector shall solicit recommendations from TxDOT regarding the adequacyand design capacity of such roadways to safely accommodate the additionalvolumes and weights of traffic generated or expected to be generatedby the facility operation.
(b) United States Army Corps of Engineers. The executivedirector shall coordinate the review of all permit applications forMSW disposal facilities with the appropriate district engineer todetermine the need for a permit from the Corps of Engineers.
(c) Federal Aviation Administration (FAA). The executivedirector shall coordinate the review of permit applications for allMSW land disposal facilities existing or proposed in the vicinityof airports with the appropriate airports' district office of theFAA (FAA Advisory Circular 150/5200-33C, "Hazardous WildlifeAttractants on or Near Airports," February21, 2020) [(FAAAdvisory Circular 150/5200.33A, "Hazardous Wildlife Attractants onor Near Airports," July 27, 2004)].
(d) Special districts. The Texas Health and SafetyCode (THSC) applies to political subdivisions of the state to whichthe legislature has given waste handling authority for two or morecounties. The relationship between the agency and any such waste handlingauthority will be similar to that between the agency and a county.
(e) Regional planning agencies. The agency will provideeducational, technical, and advisory assistance to the various councilsof governments and regional planning commissions throughout the state.
(f) Municipal governments. Municipalities may enforcethe provisions of this chapter as provided for in the THSC and theTexas Water Code. The commission is committed to assisting municipalgovernments in an educational and advisory capacity. The commissionis a necessary and indispensable party to any suit filed by a localgovernment under the THSC and the Texas Water Code.
(g) County governments. County governments may exercisethe authority provided in THSC, Chapters 361, 363, and 364, regardingthe management of solid waste including the enforcement of the requirementsof the THSC and this chapter. The provisions of THSC, Chapters 361,363, and 364, allow county governments to require and issue licensesauthorizing and governing the operation and maintenance of facilitiesused for the storage, processing, or disposal of solid waste not inthe territorial or extraterritorial jurisdiction of a municipality.THSC, Chapters 361, 363, and 364, provide that no license for disposalof solid waste may be issued, renewed, or extended without the priorapproval of the commission. Under Texas Water Code, Chapter 7, thecommission is a necessary and indispensable party to any suit filedby a local government for the violation of any provision of the SolidWaste Disposal Act. If a permit is issued, renewed, or extended bythe commission, the owner or operator of the facility does not needto obtain a separate license for the same facility from a county orfrom a political subdivision as defined in THSC, Chapters 361, 363,and 364.
(h) Texas Parks and Wildlife Department (TPWD). TPWDhas jurisdiction over certain environmental issues that may be affectedby MSW facilities including, but not limited to, endangered speciesand wetlands. The executive director will solicit comments from, andconsider information provided by, TPWD.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402109
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER B. PERMIT AND REGISTRATION APPLICATION PROCEDURES30 TAC §§330.57, 330.63, 330.65, 330.69
Statutory Authority
The amendments are proposed under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.57.Permit and Registration Applications for Municipal Solid Waste Facilities.
(a) Permit application. The application for a municipalsolid waste facility is divided into Parts I - IV. Parts I - IV ofthe application shall be required before the application is declaredadministratively complete in accordance with Chapter 281 of this title(relating to Applications Processing). The owner or operator shallsubmit a complete application, containing Parts I - IV, before a hearingcan be conducted on the technical design merits of the application.An owner or operator applying for a permit may request a land-useonly determination. If the executive director determines that a land-useonly determination is appropriate, the owner or operator shall submita partial application consisting of Parts I and II of the application.The executive director may process a partial permit application tothe extent necessary to determine land-use compatibility alone. Ifthe facility is determined to be acceptable on the basis of land use,the executive director will consider technical matters related tothe permit application at a later time. When this procedure is followed,an opportunity for a public hearing will be offered for each determinationin accordance with §39.419 of this title (relating to Noticeof Application and Preliminary Decision). A complete application,consisting of Parts I - IV of the application, shall be submittedbased upon the results of the land-use only public hearing. Ownersor operators of Type IAE and Type IVAE municipal solid waste landfillunits are required to submit all parts of the application except forthose items pertaining to Subchapters H and J of this chapter (relatingto Liner System Design and Operation; and Groundwater Monitoring andCorrective Action). Owners or operators of Type IAE and Type IVAEmunicipal solid waste landfill units are exempt from the geology reportrequirements of §330.63(e) of this title (relating to Contentsof Part III of the Application) except for the requirement to submita soil boring plan in accordance with §330.63(e)(4) and (e)(4)(A)of this title, and the information requested in §330.63(e)(6)of this title.
(b) Registration application. A registration applicationfor a municipal solid waste facility is also divided into Parts I- IV, but is not subject to a hearing request or to the administrativecompleteness determinations of Chapter 281 of this title.
(c) Parts of the application.
(1) Part I of the application consists of the informationrequired in §281.5 of this title (relating to Application forWastewater Discharge, Underground Injection, Municipal Solid Waste,Radioactive Material, Hazardous Waste, and Industrial Solid WasteManagement Permits), §305.45 of this title (relating to Contentsof Application for Permit), and §330.59 of this title (relatingto Contents of Part I of the Application).
(2) Part II of the application describes the existingconditions and character of the facility and surrounding area. PartII of the application shall consist of the information contained in§330.61 of this title (relating to Contents of Part II of theApplication). Parts I and II of a permit application must provideinformation relating to land-use compatibility under the provisionsof Texas Health and Safety Code, §361.069. Part II may be combinedwith Part I of the application or may be submitted as a separate document.An owner or operator must submit Parts I and II of the permit applicationbefore a land-use determination is made in accordance with subsection(a) of this section.
(3) Part III of the application contains design information,detailed investigative reports, schematic designs of the facility,and required plans. Part III shall consist of the documents requiredin §330.63 of this title.
(4) Part IV of the application contains the site operatingplan that shall discuss how the owner or operator plans to conductdaily operations at the facility. Part IV shall consist of the documentsrequired in §330.65 of this title (relating to Contents of PartIV of the Application).
(d) Required information. The information requiredby this subchapter defines the basic elements for an application.All aspects of the application and design requirements must be addressedby the owner or operator, even if only to show why they are not applicablefor that particular site. It is the responsibility of the applicantto provide the executive director data of sufficient completeness,accuracy, and clarity to provide assurance that operation of the sitewill pose no reasonable probability of adverse effects on the health,welfare, environment, or physical property of nearby residents orproperty owners. Failure of the owner or operator to provide completeinformation as required by this chapter may be cause for the executivedirector to return the application without further action in accordancewith §281.18 and §281.19 of this title (relating to ApplicationsReturned and Technical Review). Submission of false information shallconstitute grounds for denial of the permit or registration application.
(e) Number of copies.
(1) Applications shall be initially submitted in twopaper copies and one accurate duplicate in electronic format [four copies]. The owner or operator shall furnish [up to18] additional copies of the application for use by requiredreviewing agencies, upon request of the executive director.
(2) The accurate duplicate in electronicformat shall meet the application formatting and drawing requirementsof the paper copy.
(3) [(2)] For permit applicationsinitially submitted to the executive director, the owner or operatorshall also furnish Parts I and II, and any subsequent revisions toParts I and II, to the regional council of governments.
(f) Preparation. Preparation of the application mustconform with Texas Occupations Code, Texas Engineering Practice Act,Chapter 1001 and Texas Geoscience Practice Act, Chapter 1002.
(1) The responsible engineer shall seal, sign, anddate the title page of each bound engineering report or individualengineering plan in the application and each engineering drawing asrequired by Texas Engineering Practice Act, §15c, and in accordancewith 22 TAC §137.33 (relating to Sealing Procedures).
(2) The responsible geoscientist shall seal, sign,and date applicable items as required by Texas Geoscience PracticeAct, §6.13(b), and in accordance with 22 TAC §851.156 (relatingto Professional Geoscientist Seals and Geoscience Firm Identification).
(3) Applications that have not been sealed shall beconsidered incomplete for the intended purpose and shall be returnedto the owner or operator.
(g) Application format.
(1) Paper applications [Applications]shall be submitted in three-ring, "D"-ring, loose-leaf binders.
(2) The title page shall show the name of the project;the municipal solid waste permit application number, if known; thename of the owner and operator; the location by city and county; thedate the part was prepared; and, if appropriate, the number and dateof the revision. It shall be sealed as required by the Texas EngineeringPractice Act.
(3) The table of contents shall list and give the pagenumbers for the main sections of the application. It shall be sealedas required by the Texas Engineering Practice Act.
(4) The narrative of the report shall be printed on8-1/2 by 11 inches white paper. Drawings or other sheets shall beno larger than 11 by 17 inches so that they can be reproduced by standardoffice copy machines.
(5) All pages shall contain a page number and date.
(6) Revisions shall have the revision date and notethat the sheet is revised in the header or footer of each revisedsheet. The revised text shall be marked to highlight the revision.
(7) Use dividers and tabs [Dividersand tabs are encouraged].
(h) Application drawings.
(1) All information contained on a drawing shall belegible, even if it has been reduced. The drawings shall be 8-1/2by 11 inches or 11 by 17 inches. Standard-sized drawings (24 by 36inches) folded to 8-1/2 by 11 inches may be submitted or requiredif reduction would render them illegible or difficult to interpret.
(2) If color coding is used, it should be legible andthe code distinct when reproduced on black and white photocopy machines.
(3) Drawings shall be submitted at a standard engineering scale.
(4) Each drawing shall have a:
(A) dated title block;
(B) bar scale at least one-inch long;
(C) revision block;
(D) responsible engineer's or geoscientist's seal, if required; and
(E) drawing number and a page number.
(5) Each map or plan drawing shall also have:
(A) a north arrow. Preferred orientation is to havethe north arrow pointing toward the top of the page;
(B) a reference to the base map source and date, ifthe map is based upon another map. The latest published edition ofthe base map should be used; and
(C) a legend.
(6) Match lines and section lines shall reference thedrawing where the match or section is shown. Section drawings shouldnote from where the section was taken.
(i) Posting application information.
[(1) Upon submittal of an application,the owner or operator shall provide a complete copy of any applicationthat requires public notice, except for authorizations at Type IAEand Type IVAE landfill facilities, including all revisions and supplementsto the application, on a publicly accessible internet website, andprovide the commission with the Web address link for the applicationmaterials. This internet posting is for informational purposes only].
(1) [(2)] The commission shallpost on its website the accurate duplicate electronic application(s) [identity of all owners and operators filing such applicationsand the Web address link required by this subsection].
(2) [(3)] For applications fornew permits or major amendments, an owner or operator shall post noticesigns at the site within 30 days of the executive director's receiptof an application. This sign posting is for informational purposesonly. Signs must:
(A) consist of dark lettering on a white backgroundand must be no smaller than four feet by four feet with letters atleast three inches in height and block printed capital lettering;
(B) identify as appropriate that the application isfor a proposed permitted facility or an amendment to a permitted facility;
(C) include the words "For further information on howthe public may participate in Texas Commission on Environmental Quality(TCEQ) permitting matters, contact TCEQ," the toll free telephonenumber for the Public Education Program, and the agency's website address;
(D) include the name and address of the owner or operator;
(E) include the telephone number of the owner or operator; and
(F) remain in place and legible until the close ofthe final comment period.
(3) [(4)] Signs must be locatedwithin ten feet of every property line bordering a public highway,street, or road. Signs must be visible from the street and spacedat not more than 1,500-foot intervals. A minimum of one sign, butno more than three signs, shall be required along any property lineparallel to a public highway, street, or road. This paragraph's signrequirements do not apply to properties under the same ownership thatare noncontiguous or separated by intervening public highway, street,or road, unless the property is part of the permitted facility.
(4) [(5)] The owner or operatorshall also post signs at the facility in an alternative language whenthe alternative language requirements in §39.426 of thistitle (relating to Alternative Language Requirements) [§39.405(h)(2)of this title (relating to General Notice Provisions)] are met.
(5) [(6)] The executive directormay approve variances from the requirements of paragraphs (2),(3), and (4) [(3), (4), and (5)] of this subsectionif the owner or operator has demonstrated that it is not practicalto comply with the specific requirements of those paragraphs and alternativesign posting plans proposed by the owner or operator are at leastas effective in providing notice to the public. Approval from theexecutive director under this paragraph must be received before postingalternative signs for purposes of satisfying the requirements of this subsection.
§330.63.Contents of Part III of the Application.
(a) Site development plan. This plan must include criteriathat in the selection and design of a facility will provide for thesafeguarding of the health, welfare, and physical property of thepeople and the environment through consideration of geology, soilconditions, drainage, land use, zoning, adequacy of access roads andhighways, and other considerations as the specific facility dictates.The site development plan must include the items listed in this section.
(b) General facility design.
(1) Facility access. The owner or operator shall describehow access will be controlled for the facility such as the type andlocation of fences or other suitable means of access control to preventthe entry of livestock, to protect the public from exposure to potentialhealth and safety hazards, and to discourage unauthorized entry oruncontrolled disposal of solid waste or hazardous materials.
(2) Waste movement. The owner or operator shall submita generalized process design and working plan of the overall facilitythat includes, at a minimum:
(A) flow diagrams indicating the storage, processing,and disposal sequences for the various types of wastes and feedstocks received;
(B) schematic view drawings showing the various phasesof collection, separation, processing, and disposal as applicablefor the types of wastes and feedstocks received at the facility;
(C) proposed ventilation and odor control measuresfor each storage, separation, processing, and disposal unit;
(D) generalized construction details of all storageand processing units and ancillary equipment (i.e., tanks, foundations,sumps, etc.) with regard to approximate dimensions and capacities,construction materials, vents, covers, enclosures, protective coatingsof surfaces, etc. Performance data on all units shall be provided;
(E) generalized construction details of slab and subsurfacesupports of all storage and processing components;
(F) locations and engineering design details of allcontainment dikes or walls (with indicated freeboard) proposed toenclose all storage and processing components and all loading andunloading areas;
(G) plans for the storage of grease, oil, and sludgeon site including determinations of maximum periods of time all separatedmaterials will remain on site and the ultimate disposition of suchmaterials off site;
(H) proposed disposition of effluent resulting fromall processing operations; and
(I) for transfer stations, provide designs for noisepollution control.
(3) Sanitation. The owner or operator shall describehow solid waste processing facilities will be designed to facilitateproper cleaning. This may be accomplished by:
(A) controlling surface drainage in the vicinity ofthe facility to prevent surface water runoff onto, into, and off thetreatment area;
(B) constructing walls and floors in operating areasof masonry, concrete, or other hard-surfaced materials that can behosed down and scrubbed;
(C) providing necessary connections and equipment topermit thorough cleaning with water or steam; and
(D) providing adequate floor or sump drains to removewash water.
(4) Water pollution control. The owner or operatorshall describe how all liquids resulting from the operation of solidwaste processing facilities will be disposed of in a manner that willnot cause surface water or groundwater pollution. The owner or operatorshall provide for the treatment of wastewaters resulting from theprocess or from cleaning and washing and specify how the procedurefor wastewater disposal is in compliance with the rules of the commission.
(5) Endangered species protection. If necessary, theowner or operator shall describe how the facility will be designedto protect endangered species.
(c) Facility surface water drainage report. The owneror operator of a municipal solid waste (MSW) facility shall includea statement that the facility design complies with the requirementsof §330.303 of this title (relating to Surface Water Drainagefor Municipal Solid Waste Facilities). Additionally, applicationsfor landfill and compost units shall include a surface water drainagereport to satisfy the requirements of Subchapter G of this chapter(relating to Surface Water Drainage) and shall include the following.
(1) Drainage analyses. The owner or operator shallsubmit the following information and analyses:
(A) drawing(s) showing the drainage areas and drainage calculations;
(B) designs of all drainage facilities within the facilityarea, including such features as typical cross-sectional areas, ditchgrades, flow rates, water surface elevation, velocities, and flowlineelevations along the entire length of the ditch;
(C) sample calculations provided to verify that existingdrainage patterns will not be adversely altered;
(D) a description of the hydrologic method and calculationsused to estimate peak flow rates and runoff volumes including justificationof necessary assumptions:
(i) the 25-year rainfall intensity used for facilitydesign including the source of the data; all other data and necessaryinput parameters used in conjunction with the selected hydrologicmethod and their sources should be documented and described;
(ii) hydraulic calculations and designs for sizingthe necessary collection, drainage, and/or detention facilities;
(iii) discussion and analyses to demonstrate that existingdrainage patterns will not be adversely altered as a result of theproposed landfill development; and
(iv) structural designs of the collection, drainage,and/or storage facilities.
(2) Flood control and analyses. The owner or operator shall:
(A) identify whether the site is located within a 100-yearfloodplain. If applicable, indicate 100-year floodplain on the drawingin paragraph (1)(A) of this subsection;
(B) provide the source of all data for such determinationand include a copy of the relevant Federal Emergency Management Agency(FEMA) flood map or the calculations and maps used where a FEMA mapis not used. FEMA maps are prima facie evidence of floodplain locations.Information shall also be provided identifying the 100-year floodlevel and any other special flooding factors (e. g., wave action)that must be considered in designing, constructing, operating, ormaintaining the proposed facility to withstand washout from a 100-yearflood. The boundaries of the proposed landfill facility should beshown on the floodplain map;
(C) if the site is located within the 100-year floodplain,provide information detailing the specific flooding levels and otherevents (e.g., design hurricane projected by Corps of Engineers) thatimpact the flood protection of the facility. Data should be that requiredby §§301.33 - 301.36 of this title (relating to PreliminaryPlans: Data To Be Submitted, Criteria For Approval of PreliminaryPlans; Additional Information; Plans To Bear Seal of Engineer). Theowner or operator shall include cross-sections or elevations of landfilllevees shown tied into contours;
(D) for construction in a floodplain, submit, where applicable:
(i) approval from the governmental entity with jurisdictionunder Texas Water Code, §16.236, as implemented by Chapter 301of this title (relating to Levee Improvement Districts, District Plansof Reclamation, and Levees and Other Improvements);
(ii) a floodplain development permit from the city,county, or other agency with jurisdiction over the proposed improvements;
(iii) a Conditional Letter of Map Amendment from FEMA; and
(iv) a Corps of Engineers Section 404 Specificationof Disposal Sites for Dredged or Fill Material permit for constructionof all necessary improvements.
(d) Waste management unit design.
(1) Storage and transfer units. The owner or operator shall:
(A) describe how the solid waste management facilitywill be designed for the rapid processing and minimum detention ofsolid waste at the facility. The owner or operator shall specify thatall solid waste capable of creating public health hazards or nuisancesbe stored indoors only and processed or transferred promptly and shallnot be allowed to result in nuisances or public health hazards. Ifthe facility is in continuous operation, such as for resource or energyrecovery, the owner or operator shall provide design features forwastes storage units that will prevent the creation of nuisances orpublic health hazards due to odors, fly breeding, or harborage ofother vectors;
(B) design the units to control and contain spillsand contaminated water from leaving the facility. The design shallbe sufficient to control and contain a worst-case spill or releasefrom the unit. Unenclosed containment areas shall also account forprecipitation from a 25-year, 24-hour rainfall event; and
(C) specify the maximum allowable period of time thatunprocessed and processed wastes are to remain on site.
(2) Incineration units. The owner or operator shallprovide waste feed rates, an estimate of the amount and planned methodfor testing and final disposal of incinerator ash, an estimate ofthe volume of quench or process water, and the planned method of treatmentand disposal of such water.
(3) Surface impoundments. The owner or operator shall provide:
(A) design specifications for surface impoundments,including a plan view and cross-section of the impoundment;
(B) the minimum freeboard to be maintained and thebasis of the design to prevent overtopping resulting from normal orabnormal operations; overfilling; wind and wave action; rainfall;run-on (if allowed); malfunctions of level controllers, alarms, andother equipment; and human error. The owner or operator shall showthat adequate freeboard will be available to prevent overtopping froma 25-year, 24-hour rainfall event; and/or
(C) in accordance with §330.339 of this title(relating to Liner Quality Control Plan), a liner quality controlplan prepared in accordance with Subchapter H of this chapter (relatingto Liner System Design and Operation).
(4) Landfill units. The owner or operator shall specify:
(A) provisions for all-weather operation, e.g., all-weatherroad, wet-weather pit, alternative disposal facility, etc., and provisionsfor all-weather access from publicly owned routes to the disposalfacility and from the entrance of the facility to unloading areasused during wet weather. Interior access road locations and the typeof surfacing shall be indicated on a facility plan. The roads withinthe facility shall be designed so as to minimize the tracking of mudonto the public access road;
(B) the landfill method proposed, e.g., moving-facecell or trench, area fill, or combination;
(C) elevation of deepest excavation, maximum elevationof waste, maximum elevation of final cover;
(D) a calculation of the estimated rate of solid wastedeposition and operating life of the landfill unit. As a general rule,10,000 people with a per capita collection rate of five pounds perday, dispose of 10 - 15 acre-feet of solid waste in one year;
(E) landfill unit cross-sections consisting of planprofiles across the facility clearly showing the top of the levee,top of the proposed fill (top of the final cover), maximum elevationof proposed fill, top of the wastes, existing ground, bottom of theexcavations, side slopes of trenches and fill areas, gas vents orwells, and groundwater monitoring wells, plus the initial and staticlevels of any water encountered. The owner or operator shall providea sufficient number of cross-sections, both latitudinally and longitudinally,so as to accurately depict the existing and proposed depths of allfill areas within the site. The plan portion shall be shown on aninset key map. The fill cross-sections shall go through or very nearthe soil borings in order that the boring logs obtained from the soilsreport can also be shown on the profile;
(F) construction and design details of compacted perimeteror toe berms that are proposed in conjunction with aboveground (aerial-fill)waste disposal areas shall be included in the fill cross-sections; and
(G) a liner quality control plan prepared in accordancewith Subchapter H of this chapter.
(5) Arid exemption landfill application information.Owners or operators of new, existing, and lateral expansions of smallMSW landfill facilities that meet the criteria in §330.5(b) ofthis title (relating to Classification of Municipal Solid Waste Facilities)shall submit a certification of eligibility to the executive directorand place a copy of the certification in the operating record. Thecertification shall be signed by a principal executive officer, aranking elected official, or an independent professional engineerlicensed to practice in the State of Texas. The certification mustcontain the following information:
(A) a statement certifying that the small MSW landfillfacility meets all requirements contained in §330.5(b) of thistitle for exemptions from Subchapter H of this chapter (relating toLiner System Design and Operation) and Subchapter J of this chapter(relating to Groundwater Monitoring and Corrective Action);
(B) documentation that the small MSW landfill facilityreceives for disposal an annual average of less than 20 tons per dayof authorized types of waste in a Type IAE landfill unit and/or lessthan 20 tons per day of authorized types of waste in a Type IVAE landfillunit for a total waste acceptance rate less than 40 tons per day forthe facility, based upon the most recent four reporting quarters ora certification that programs have been put in place, or will be implemented,to reduce the annual average to less than 20 tons per day based onan annual average for each landfill unit type within one year;
(C) documentation that there are no practicable wastemanagement alternatives available. The documentation shall demonstrateone of the following:
(i) additional costs of available alternatives areestimated to exceed 1.0% of the owner's or operating community's budgetfor all public services;
(ii) haul distances to alternative sites are unreasonablylong; or
(iii) all other alternatives are not feasible to implement,given the community location and economic condition; and
(D) documentation that the small MSW landfill unitreceives less than or equal to 25 inches of average annual precipitationas determined from precipitation data for the nearest official precipitationrecording station for the most recent 30-year reporting period.
(6) Type V mobile liquid waste processing units. Theowner or operator shall provide the following:
(A) documentation of affirmative local government approvalor acceptance of the mobile unit operation, including conformity withlocal ordinances, local rules, or requirements set forth by the treatmentfacility for the discharge, including local limits, zoning restrictions,permits, licenses, authorizations, etc. These regulations do not grantauthorization for operation of mobile liquid waste processing unitsin noncompliance with local government ordinances and regulationsor without the express approval of the local wastewater authority.Discharge from a mobile liquid waste processing unit is allowed onlyat selected disposal points selected by the local treatment facilitypermitted under Texas Water Code, Chapter 26, so that they can bemonitored by the local treatment facility; and
(B) written approval from the receiving treatment facilitypermitted under Texas Water Code, Chapter 26.
(7) Type IX energy, material, gas recovery for beneficialuse, or landfill mining waste processing units. The owner or operatorshall provide:
(A) For wastes to be excavated, a test pit evaluationreport prepared by an engineer. Prior approval of a test pit planmust be obtained from the executive director before excavation oftest pits including location and depth of all test pits, includinga discussion and information on the following:
(i) a description of the characteristics of waste observedin test pits excavated on the site to include the percent of paper,plastics, ferrous metal, other metal, glass, other constituents, andsoil fraction by weight;
(ii) a design for the test pits to extend four feetbeneath the waste or to a depth authorized by the executive directorand information submitted to include a Toxicity Characteristic LeachingProcedure (TCLP) of the soil to characterize the soil beneath thesite. Liners if present shall not be disrupted;
(iii) a TCLP analysis of each representative type ofwaste excavated. Additionally, waste excavated from each test pitmust be analyzed for asbestos and polychlorinated biphenyls (PCBs).Consideration should be given to the analysis of waste material fromeach test pit for hazardous waste constituents;
(iv) a determination as to a sufficient number of testpits to establish the properties of the waste. A site of five acresor less must have a minimum of three test pits. Sites larger thanfive acres must have three test pits plus one for every additionalfive acres or fraction of an acre. The number of test pits shall beapproved by the executive director prior to making the pits. The testpits should be sufficiently large enough to provide representative information;
(v) a description of how all test pits will be backfilledwith clean high plasticity or low plasticity clay. The excavationshall be backfilled to exceed the existing grade and provide positive drainage;
(vi) a cross-section drawing using the informationfrom the test pits to depict the top and bottom elevations of the landfill;
(vii) a plan view map depicting the location and extent(vertical and lateral) of the waste unit and proposed extent of mining/recoveryoperations. In areas with liners, mining operations should not extendbelow the top of the protective cover of the liner. In areas whereno liner exists, excavation operations may extend below the waste;
(viii) an evaluation of historical records of landfilloperations, where available, to determine such things as hazardouswaste potential, receipt of special waste, types of waste received,special waste disposal areas, construction or demolition waste disposalareas, methane and leachate records, age, volume, disposal methods,existence of liners, gas collection systems, and leachate collectionsystems; and
(ix) a description of how all waste removed in testpit evaluation will be disposed of in a permitted landfill;
(B) a process description to include:
(i) a list of the typical materials intended for processingalong with the anticipated volume to be processed. This descriptionshall also contain an estimate of the daily quantity of material tobe processed at the facility along with a description of the proposedprocess of screening for hazardous materials;
(ii) the methods of excavating the buried waste materials.The owner or operator shall indicate how the material will be handled,how long it will remain in the area, what equipment will be used,how the material will be moved from the excavation area, how the excavationarea will be held to a minimum, the maximum side slopes in buriedwaste, and the maximum excavation area at any one time. The owneror operator shall provide the sequence of excavation;
(iii) the processes used to recover reusable or recyclablematerial or energy. The narrative shall include any water addition,processing rates, equipment, and mass balance or energy balance calculations;
(iv) how any process water will be handled and disposedof if a wet mining process is to be used;
(v) a complete narrative on product distribution toinclude items such as disposition of material or energy recoveredand probable use of soils on site and off site; and
(vi) a process diagram that depicts the general process;
(C) a description of liner system used for excavatedwaste storage, processing, and screening areas to control seepageand runoff. The liner shall be covered with a material designed towithstand normal traffic from the processing operations; and
(D) a description of how waste excavation activitieswill comply with the minimum design and operation requirements of:
(i) §330.149 (relating to Odor Management Plan);
(ii) §330.151 (relating to Disease Vector Control);
(iii) §330.165 (relating to Landfill Cover); and
(iv) §330.167 (relating to Ponded Water).
(8) Compost units. The owner or operator shall provide:
(A) for mechanical composting systems, a detailed engineeringdescription of the system and the manufacturer's performance data;
(B) facility layout, including calculations for area requirements;
(C) a description of the movement of the material asit leaves the tipping area indicating how the material is incorporatedinto the composting process and what handling techniques are usedall the way through to the post-processing area. The narrative must include:
(i) processing rates;
(ii) equipment;
(iii) mass balance calculations;
(iv) use of bulking agents, moisture control, or feed amendments;
(v) process monitoring methods;
(vi) temperature range and resident time;
(vii) storage of compost for curing after the primarycomposting operation; and
(viii) provision for additional drying and screening;
(D) a narrative on the post-processing process, includingpost-processing times, identification and segregation of product,storage of product, and quality assurance and quality control; and
(E) a narrative on product distribution including itemssuch as end-product quantities, anticipated final grades, packaging,labeling, loading, marketing, distribution, tracking, and deliveryof composted material.
(9) Type VI waste processing demonstration facilities.
(A) The facility size shall be limited to a liquidwaste processing rate no greater than 10,000 gallons per day.
(B) The facility design and operation shall be coordinatedwith a consultant connected with an accredited college or universityor with a consultant that has demonstrated the ability to carry outscientific experiments for demonstrating new and unproven waste handlingmethods and submitted to the executive director. The owner or operatorshall submit to the executive director an annual and final statusreport to document the viability of the method being demonstrated.The report, at a minimum, must document the effluent standards andsolid waste standards achieved.
(C) The owner or operator may request a variance.
(i) In specific cases, the executive director may approvea variance from the requirements of this chapter if the variance isnot contrary to safeguarding the health, welfare, and physical propertyof the people and to protecting the environment. A variance may notbe approved concerning the procedural requirements of this chapter.
(ii) A request for a variance must be submitted inwriting to the executive director. The request may be made in an applicationfor a registration. Any approval of a variance must be in writingfrom the executive director.
(e) Geology report. This portion of the applicationapplies to owners or operators of MSW landfills, compost units, andif otherwise requested by the executive director. The geology reportshall be prepared and signed by a qualified groundwater scientist.Previously prepared documents may be submitted but must be supplementedas necessary to provide the requested information. Sources and referencesfor information must be provided. The geology report must containthe following information:
(1) a description of the regional geology of the areathat includes:
(A) a geologic map of the region with text describingthe stratigraphy and lithology of the map units. An appropriate sectionof a published map series such as the Geologic Atlas of Texas preparedby the Bureau of Economic Geology is acceptable; and
(B) a description of the generalized stratigraphiccolumn in the facility area from the base of the lowermost aquifercapable of providing usable groundwater, or from a depth of 1,000feet, whichever is less, to the land surface. The geologic age, lithology,variations in lithology, thickness, depth, geometry, hydraulic conductivity,and depositional history of each geologic unit should be describedbased upon available geologic information. Regional stratigraphiccross-sections should be provided;
(2) a description of the geologic processes activein the vicinity of the facility that includes an identification ofany faults and subsidence in the area of the facility. The informationabout faulting and subsidence shall include at least that requiredin §330.555(b) and §330.559 of this title (relating to FaultAreas and Unstable Areas);
(3) a description of the regional aquifers in the vicinityof the facility based upon published and open-file sources that provides:
(A) aquifer names and their association with geologicunits described in paragraph (1)(B) [paragraph (2)]of this subsection;
(B) the composition of the aquifer(s);
(C) the hydraulic properties of the aquifer(s);
(D) information on whether the aquifers are under watertable or artesian conditions;
(E) information on whether the aquifers are hydraulically connected;
(F) a regional water-table contour map or potentiometricsurface map for each aquifer, if available;
(G) an estimate of the rate of groundwater flow;
(H) typical values or a range of values for total dissolvedsolids content of groundwater from the aquifers;
(I) identification of areas of recharge to the aquiferswithin five miles of the site; and
(J) the present use of groundwater withdrawn from aquifersin the vicinity of the facility. The identification, location, andaquifer of all water wells within one mile of the property boundariesof the facility shall be provided;
(4) the results of investigations of subsurface conditionsat a particular waste management unit. This report must describe allborings drilled on site to test soils and characterize groundwaterand must include a site map drawn to scale showing the surveyed locationsand elevations of the borings. Boring logs must include a detaileddescription of materials encountered including any discontinuitiessuch as fractures, fissures, slickensides, lenses, or seams. Geophysicallogs of the boreholes may be useful in evaluating the stratigraphy.Each boring must be presented in the form of a log that contains,at a minimum, the boring number; surface elevation and location coordinates;and a columnar section with text showing the elevation of all contactsbetween soil and rock layers, description of each layer using theunified soil classification, color, degree of compaction, and moisturecontent. A key explaining the symbols used on the boring logs andthe classification terminology for soil type, consistency, and structuremust be provided. The boring plan, including locations and depthsof all proposed borings, shall be approved by the executive directorprior to initiation of the work.
(A) A sufficient number of borings shall be performedto establish subsurface stratigraphy and to determine geotechnicalproperties of the soils and rocks beneath the facility. Other typesof samples may also be taken to provide geologic and geotechnicaldata. The number of borings necessary can only be determined afterthe general characteristics of a site are analyzed and will vary dependingon the heterogeneity of subsurface materials. Locations with stratigraphiccomplexities such as non-uniform beds that pinch out, vary significantlyin thickness, coalesce, or grade into other units, will require asignificantly greater degree of subsurface investigation than areaswith simple geologic frameworks.
(B) Borings shall be sufficiently deep enough to allowidentification of the uppermost aquifer and underlying hydraulicallyinterconnected aquifers. Borings shall penetrate the uppermost aquiferand all deeper hydraulically interconnected aquifers and be deep enoughto identify the aquiclude at the lower boundary. All the borings shallbe at least five feet deeper than the elevation of the deepest excavation.In addition, at least the number of borings shown on the Table ofBorings shall be drilled to a depth at least 30 feet below the deepestexcavation planned at the waste management unit, unless the executivedirector approves a different depth. If no aquifers exist within 50feet of the elevation of the deepest excavation, at least one testhole shall be drilled to the top of the first perennial aquifer beneaththe site, if sufficient data does not exist to accurately locate it.The executive director may accept data equivalent to a deep boringon the site to determine information for aquifers more than 50 feetbelow the site. Aquifers more than 300 feet below the lowest excavationand where the estimated travel times for constituents to the aquiferare in excess of 30 years plus the estimated life of the site neednot be identified through borings.
Figure: 30 TAC §330.63(e)(4)(B) (No change.)
(C) All borings shall be conducted in accordance withestablished field exploration methods. The hollow-stem auger boringmethod is recommended for softer materials; coring may be requiredfor harder rocks. Other methods shall be used as necessary to obtainadequate samples for soil testing required in this paragraph. Investigationprocedures shall be discussed in the report.
(D) Installation, abandonment, and plugging of theborings in accordance with the rules of the commission.
(E) Both the number and depth of borings may be modifiedbecause of site conditions with approval of the executive director.
(F) Geophysical methods, such as electrical resistivity,may be used with authorization of the executive director to reducethe number of borings that may be necessary or to provide additionalinformation between borings.
(G) Cross-sections must be prepared from the boringsdepicting the generalized strata at the facility. For small wastemanagement units, two perpendicular cross-sections will normally suffice.
(H) A narrative that describes the investigator's interpretationsof the subsurface stratigraphy based upon the field investigationshall be provided;
(5) geotechnical data that describes the geotechnicalproperties of the subsurface soil materials and a discussion withconclusions about the suitability of the soils and strata for theuses for which they are intended. All geotechnical tests shall beperformed in accordance with industry practice and recognized proceduressuch as described below. A brief discussion of geotechnical test procedures including:
(A) a laboratory report of soil characteristics determinedfrom at least one sample from each soil layer or stratum that willform the bottom and side of the proposed excavation and from thosethat are less than 30 feet below the lowest elevation of the proposedexcavation. Additional tests shall be performed, as necessary, toprovide a typical profile of soil stratification within the site.No laboratory work need be performed on highly permeable soil layerssuch as sand or gravel. The samples shall be tested by a competentindependent third-party soils laboratory;
(B) permeability tests performed according to one ofthe following standards on undisturbed soil samples. Permeabilitytests shall be performed using tap water or .05 Normal solution ofcalcium sulfate (CaSO 4 ), and not distilledwater, as the permeant. Those undisturbed samples that represent thesidewall of any proposed cell, pit, or excavation shall be testedfor the coefficient of permeability on the sample's in-situ horizontalaxis; all others shall be tested on the in-situ vertical axis. Alltest results shall indicate the type of tests used and the orientationof each tested sample. All calculations for the final coefficientof permeability tests result for each sample tested shall be includedin the report:
(i) constant head with back pressure per Appendix VIIof Corps of Engineers Manual EM1110-2-1906, "Laboratory Soils Testing;"American Society for Testing and Materials (ASTM) D5084 "SaturatedPorous Materials Using a Flexible Wall Permeameter";
(ii) falling head per Appendix VII of Corps of EngineersManual EM1110-2-1906, "Laboratory Soils Testing";
(iii) sieve analysis for the 200, and less than 200fraction per ASTM D1140;
(iv) Atterberg limits per ASTM D4318; and
(v) moisture content per ASTM D2216;
(C) the depth at which groundwater was encounteredand records of after-equilibrium measurements in all borings. Thecross-sections prepared in response to paragraph (4)(G) of this subsectionmust be annotated to note the level at which groundwater was firstencountered and the level of groundwater after equilibrium is reachedor just prior to plugging, whichever is later. This water-level informationmust also be presented on all borings required by paragraph (4) ofthis subsection and presented in a table format in the report;
(D) records of water-level measurements in monitoringwells. Historic water-level measurements made during any previousgroundwater monitoring shall be presented in a table for each well;
(E) a tabulation of all relevant groundwater monitoringdata from wells on site or on adjacent MSW landfill unit(s); and
(F) identification of the uppermost aquifer and anylower aquifers that are hydraulically connected to it beneath thefacility, including groundwater flow direction and rate, and the basisfor such identification (i.e., the information obtained from hydrogeologicinvestigations of the facility area);
(6) for owners and operators seeking an arid exemptionfor their landfill unit designs, a groundwater certification processmust be used for meeting the provisions for groundwater certificationof the arid exemption, as described in §330.5(b) of this title:
(A) locate and plot the facility accurately on a topographicmap (7.5-minute or 15-minute United States Geological Survey quadrangle).Draw a line to enclose all of the area within one mile of the facility boundary;
(B) visit the facility and locate by physical inspectionwater wells and springs in the facility area. Determine the locationsand plot them on the topographic map:
(i) if no wells or springs exist within the facilityarea, refer to subparagraph (I) of this paragraph. Otherwise, referto clause (ii) of this subparagraph; and
(ii) determine from appropriate records (for example,water-well drillers, pump installers, city records, underground waterconservation district, Texas Water Development Board, Texas Commissionon Environmental Quality, United States Geological Survey, etc.) whichof the wells are completed in the shallowest aquifer. If no wellsare completed in the shallowest aquifer or if the shallowest aquiferis more than 150 feet below the land surface at the facility, referto subparagraph (I) of this paragraph. Otherwise, refer to subparagraph(C) of this paragraph;
(C) determine the groundwater gradient of the shallowestaquifer in the vicinity of the facility. This can be done by measuringstabilized water levels in wells completed in the shallowest aquiferin the facility area (from subparagraph (B)(ii) of this paragraph)or from previous hydrogeologic studies using contemporaneous stabilizedwater-level measurements. Care should be taken to measure water levelswhen nearby high-volume wells, such as irrigation wells, have notbeen pumped for a long enough period to allow the water level to stabilize.Where no data exist or cannot be determined, the regional gradientcan be used;
(D) from springs and from the wells completed in theshallowest aquifer, select the two wells/springs downgradient of andnearest to the facility based on the findings from subparagraph (C)of this paragraph. Select a well/spring upgradient or lateral to thefacility, where groundwater quality is not likely to have been affectedby landfill activities and preferably not by other human activitiessuch as oil and gas operations, feedlots, sewage treatment plants,septic systems, etc;
(E) sample the three selected wells/springs determinedby subparagraphs (C) and (D) of this paragraph in accordance withaccepted practices, such as described in technical guidance from theexecutive director. The owner or operator shall have the samples analyzedby a qualified laboratory for the following parameters:
(i) chloride;
(ii) nitrate (as N);
(iii) sulfate;
(iv) total dissolved solids;
(v) specific conductance;
(vi) pH;
(vii) chromium;
(viii) non-purgeable organic carbon; and
(ix) volatile organic compounds listed in §330.419of this title (relating to Constituents for Detection Monitoring);
(F) if permission cannot be obtained to sample oneor more of the three selected wells/springs, select one or more alternatewells/springs, within the plotted area. If fewer than three wells/springsare available, sample those that are available;
(G) if permission cannot be obtained to sample anyappropriately located wells/springs, submit written documentationof the facts to the executive director. If the executive directorconfirms that permission cannot be obtained for sampling, the well(s)may be eliminated from consideration;
(H) compile the data from subparagraphs (A) - (F) ofthis paragraph in a report that includes:
(i) a map showing all known wells, springs, facilityboundaries, sampling points, etc.;
(ii) a map showing the groundwater gradient and data points;
(iii) chemical analyses, showing analytical methods used;
(iv) logs and construction information for the sampledwells and description and flow rate for sampled springs;
(v) text describing methods of investigation, suchas sampling and water-level measurements; and
(vi) conclusions with respect to presence or lack ofevidence of groundwater contamination by the facility;
(I) where no wells or springs are present in the facilityarea or the shallowest water level is more than 150 feet below landsurface at the facility, submit a brief report describing the facility(with a map of the area) and the method(s) of determining the lackof appropriate sampling points or depth to the shallowest aquifer.Confirmed absence of sampling points will be deemed to be "no evidenceof groundwater contamination";
(J) the report shall be signed and sealed by the qualifiedgroundwater scientist who reviewed the data and reached the conclusions;
(K) if there is no evidence of groundwater contaminationby the landfill, the qualified groundwater scientist who reviewedthe data and reached the conclusions shall sign and seal a statementin the following format: "I (we) have reviewed the groundwater datadescribed in a report submitted with this certification and have foundno evidence that the __________ municipal solid waste landfill locatedat ___________ has contaminated groundwater in the uppermost aquifer"; and
(L) the executive director may accept information anddata, other than described in this paragraph, as showing that thereis no evidence of groundwater contamination by the landfill, if theinformation and data are deemed to be adequate for such a determination.
(f) Groundwater sampling and analysis plan. The groundwatersampling and analysis plan for landfills and if otherwise requestedby the executive director for other MSW units must be prepared inaccordance with Subchapter J of this chapter (relating to GroundwaterMonitoring and Corrective Action). The groundwater sampling and analysisplan for composting operations that require a permit must be preparedin accordance with the groundwater monitoring requirements of §332.47(6)(C)(ii)of this title (relating to Permit Application Preparation). As partof this plan for Type I landfills, submit the following:
(1) on a topographic map, a delineation of the wastemanagement area, the property boundary, the proposed point of complianceas defined under §330.3 of this title (relating to Definitions),the proposed location of groundwater monitoring wells as requiredunder §330.403 of this title (relating to Groundwater Monitoring Systems);
(2) a description of any plume of contamination thathas entered the groundwater from an MSW management unit at the timethat the application was submitted. In addition:
(A) delineate the extent of the plume on the topographicmap required in paragraph (1) of this subsection; and
(B) identify the concentration of each assessment constituentas defined in §330.409 of this title (relating to AssessmentMonitoring Program) throughout the plume or identify the maximum concentrationof each assessment constituent in the plume;
(3) an analysis of the most likely pathway(s) for pollutantmigration in the event that the primary barrier liner system is penetrated.This must include any groundwater modeling data and results as describedin §330.403(e)(2) of this title and consider changes in groundwaterflow that are expected to result from construction of the facility;
(4) detailed plans and an engineering report describingthe proposed groundwater monitoring program to be implemented to meetthe requirements of §330.403 of this title;
(5) if the hazardous constituents listed in the tablelocated in 40 Code of Federal Regulations Part 258, Appendix I, and§330.419 of this title have not been detected in the groundwaterat the time of permit application, the owner or operator shall submitsufficient information, supporting data, and analyses to establisha detection monitoring program that meets the requirements of §330.407of this title (relating to Detection Monitoring Program for Type ILandfills). This submission must address the following items as specifiedin §330.407 of this title:
(A) a proposed groundwater monitoring system;
(B) background values for each monitoring parameteror constituent listed in §330.419 of this title, or proceduresto calculate such values; and
(C) a description of proposed sampling, analysis, andstatistical comparison procedures to be utilized in evaluating groundwatermonitoring data;
(6) if the presence of hazardous constituents listedin §330.419 of this title has been detected in the groundwaterat the time of the permit application, the owner or operator shallsubmit sufficient information, supporting data, and analyses to establishan assessment monitoring program that meets the requirements of §330.409of this title. To demonstrate compliance with §330.409 of thistitle, the owner or operator shall address the following items:
(A) a description of any special wastes previouslyhandled at the MSW facility;
(B) a characterization of the contaminated groundwater,including concentration of assessment constituents as defined in §330.409of this title;
(C) a list of assessment constituents as defined in§330.409 of this title for which assessment monitoring will beundertaken in accordance with §330.405 of this title (relatingto Groundwater Sampling and Analysis Requirements) and §330.409of this title;
(D) detailed plans and an engineering report describingthe proposed groundwater monitoring system, in accordance with therequirements of §330.405 of this title; and
(E) a description of proposed sampling, analysis, andstatistical comparison procedures to be utilized in evaluating groundwatermonitoring data; and
(7) if hazardous constituents have been measured inthe groundwater that exceed the concentration limits established in§330.409 of this title, the owner or operator shall submit sufficientinformation, supporting data, and analyses to establish a correctiveaction program that meets the requirements of §330.411 and §330.413of this title (relating to Assessment of Corrective Measures and Selectionof Remedy). To demonstrate compliance with §330.411 of this title,the owner or operator shall address, at a minimum, the following:
(A) a characterization of the contaminated groundwater,including concentrations of assessment constituents as defined in§330.409 of this title;
(B) the concentration limit for each constituent foundin the groundwater;
(C) detailed plans and an engineering report describingthe corrective action to be taken;
(D) a description of how the groundwater monitoringprogram will demonstrate the adequacy of the corrective action; and
(E) a schedule for submittal of the information requiredin subparagraphs (C) and (D) of this paragraph provided the owneror operator obtains written authorization from the executive directorprior to submittal of the complete permit application.
(g) Landfill gas management plan. A facility gas managementplan shall be prepared to address all of the requirements in SubchapterI of this chapter (relating to Landfill Gas Management).
(h) Closure plan. The facility closure plan shall beprepared in accordance with Subchapter K of this chapter (relatingto Closure and Post-Closure). For a landfill unit, the closure planwill include a contour map showing the final constructed contour ofthe entire landfill to include internal drainage and side slopes plusaccommodation of surface drainage entering and departing the completedfill area plus areas subject to flooding due to a 100-year frequencyflood. Cross-sections shall be provided.
(i) Post-closure plan. The facility post-closure careplan shall be prepared in accordance with Subchapter K of this chapter.
(j) Cost estimate for closure and post-closure care.The owner or operator shall submit a cost estimate for closure andpost-closure care in accordance with Subchapter L of this chapter(relating to Closure, Post-Closure, and Corrective Action Cost Estimates).For an existing facility, the owner or operator shall also submita copy of the documentation required to demonstrate financial assuranceas specified in Chapter 37, Subchapter R of this title (relating toFinancial Assurance for Municipal Solid Waste Facilities). For a newfacility, a copy of the required documentation shall be submitted60 days prior to the initial receipt of waste.
§330.65.Contents of Part IV of the Application.
(a) The owner or operator shall submit a site operatingplan. This plan will provide general operating procedures for facilitymanagement for day-to-day operations at the facility. The site operatingplan must be retained during the active life of the facility. At aminimum, the site operating plan must include a description for howthe items in Subchapters D and E of this chapter (relating to OperationalStandards for Municipal Solid Waste Landfill Facilities; and OperationalStandards for Municipal Solid Waste Storage and Processing Units)will be implemented.
(b) A facility that has an environmental managementsystem that meets [both] the minimum standards describedin §90.30 [§90.32] of this title (relatingto Minimum Standards for Environmental Management Systems) [andthe United States Environmental Protection Agency's National EnvironmentalPerformance Track (NEPT) Program standards] and is approvedto operate under an environmental management system in accordancewith §90.31 of this title (relating to Review of IncentiveApplications for Environmental Management Systems) [§90.36of this title (relating to Evaluation of an Environmental ManagementSystem by the Executive Director)], is not subject to site operatingplan requirements while the authorization to operate under the environmentalmanagement system remains in place. In the event the executive directorterminates authorization to operate under an environmental managementsystem, the facility will comply with the site operating plan requirementswithin 90 days.
(c) The owner or operator shall specify proceduresfor recirculating leachate or gas condensate into a landfill unitas part of the site operating plan.
(d) The owner or operator of a grease trap waste, grittrap waste, or septage processing facility shall submit informationidentifying any permit requirements under the Texas Pollutant DischargeElimination System and any permit requirements imposed by other agencies(e.g., local government pretreatment or discharge authorization requirements).
§330.69.Public Notice for Registrations.
(a) Notice to local governments. For mobile liquidwaste processing unit registration applications only, upon filinga registration application, the owner or operator shall mail noticeto the city, county, and local health department of any local governmentin which operations will be conducted notifying local governmentsthat an application has been filed. Proof of mailing shall be providedto the executive director in the form of return receipts for registeredmail. Mobile liquid waste processing unit registration applicationsare not subject to public meeting or sign-posting requirements undersubsection (b) of this section.
(b) Opportunity for public meeting and posting noticesigns. The owner or operator shall provide notice of the opportunityto request a public meeting and post notice signs for all registrationapplications not later than 45 days of the executive director's receiptof the application in accordance with the procedures contained in§39.501(c) of this title (relating to Application for MunicipalSolid Waste Permit) and by posting signs at the proposed site. Theowner or operator and the commission shall hold a public meeting inthe local area, prior to facility authorization, if a public meetingis required based on the criteria contained in §55.154(c) ofthis title (relating to Public Meetings) or by Texas Health and SafetyCode, §361.111(c). Notice of a public meeting shall be providedas specified in §39.501(e)(5) and (6) of this title. This sectiondoes not require the commission to respond to comments, and it doesnot create an opportunity for a contested case hearing. Applicationsfor registrations filed after the comprehensive rule revisions inthis chapter as adopted in 2006 (2006 Revisions) become effectiveare subject to the 2006 Revisions requirements to provide notice ofthe opportunity to request a public meeting. The owner, operator,or a representative authorized to make decisions and act on behalfof the owner or operator shall attend the public meeting. A publicmeeting conducted under this section is not a contested case hearingunder the Texas Government Code, Chapter 2001, Administrative ProcedureAct. At the owner's or operator's expense, a sign or signs must beposted at the site of the proposed facility declaring that the applicationhas been filed and stating the manner in which the commission andowner or operator may be contacted for further information. Such signsmust be provided by the owner or operator and must substantially meetthe following requirements.
(1) Signs must:
(A) consist of dark lettering on a white backgroundand must be no smaller than four feet by four feet with letters atleast three inches in height and block printed capital lettering;
(B) be headed by the words "PROPOSED MUNICIPAL SOLIDWASTE FACILITY";
(C) include the words "REGISTRATION NO.," the numberof the registration, and the type of registration;
(D) include the words "for further information contact";
(E) include the words "Texas Commission on EnvironmentalQuality" and the address and telephone number of the appropriate commissionpermitting office;
(F) include the name of the owner or operator, andthe address of the appropriate responsible official;
(G) include the telephone number of the owner or operator;
(H) remain in place and legible until the period forfiling a motion to overturn has expired. The owner or operator shallprovide a verification to the executive director that the sign postingwas conducted according to the requirements of this section; and
(I) describe how persons affected may request thatthe executive director and applicant conduct a public meeting.
(2) Signs must be located within ten feet of everyproperty line bordering a public highway, street, or road. Signs mustbe visible from the street and spaced at not more than 1,500-footintervals. A minimum of one sign, but no more than three signs, shallbe required along any property line paralleling a public highway,street, or road. This paragraph's sign requirements do not apply toproperties under the same ownership that are noncontiguous or separatedby intervening public highway, street, or road, unless the propertyis part of the registered facility.
(3) The owner or operator shall also post signs atthe facility in an alternative language when the alternative languagerequirements in §39.426 of this title (relating to AlternativeLanguage Requirements) [§39.405(h)(2) of this title(relating to General Notice Provisions)] are met.
(4) The executive director may approve variances fromthe requirements of paragraphs (1) and (2) of this subsection if theowner or operator has demonstrated that it is not practical to complywith the specific requirements of those paragraphs and alternativesign posting plans proposed by the owner or operator are at leastas effective in providing notice to the public. Approval from theexecutive director under this paragraph must be received before postingalternative signs for purposes of satisfying the requirements of this paragraph.
(c) Notice of final determination. The executive directorshall, after review of an application for registration, determineif the application will be approved or denied in whole or in part.In accordance with §50.133(b) of this title (relating to ExecutiveDirector Action on Application or WQMP Update), if the executive directoracts on an application, the chief clerk shall mail or otherwise transmitnotice of the action and an explanation of the opportunity to filea motion under §50.139 of this title (relating to Motion to OverturnExecutive Director's Decision). The chief clerk shall mail this noticeto the owner and operator, the public interest counsel, to adjacentlandowners as shown on the land ownership map and landowners listrequired by §330.59 of this title (relating to Contents of PartI of the Application), and to other persons who timely filed publiccomment in response to public notice.
(d) Motion to overturn. The owner or operator, or aperson affected may file with the chief clerk a motion to overturnthe executive director's action on a registration application, under§50.139 of this title. The criteria regarding motions to overturnshall be explained in public notices given under Chapter 39 of thistitle (relating to Public Notice) and §50.133 of this title.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402110
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER C. MUNICIPAL SOLID WASTE COLLECTION AND TRANSPORTATIONStatutory Authority
The amendment is proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; Texas Health and Safety Code (THSC),§361.011, which grants the commission authority over municipalsolid waste; THSC, §361.017, which grants the commission jurisdictionover industrial solid waste and hazardous municipal waste; and THSC,§361.024, which authorizes the commission to adopt rules consistentwith the general purposes of the Solid Waste Disposal Act.
The proposed amendment implements House Bill 3060, 88th Texas Legislature, 2023.
§330.103.Collection and Transportation Requirements.
(a) Municipal solid waste (MSW) containing putresciblesshall be collected a minimum of once weekly to prevent propagationand attraction of vectors and the creation of public health nuisances.Collection should be made more frequently in circ*mstances where vectorbreeding or harborage potential is significant.
(b) Transporters of MSW shall be responsible for ensuringthat all solid waste collected is unloaded only at facilities authorizedto accept the type of waste being transported. Off-loading at an unauthorizedlocation or at a facility not authorized to accept such waste is aviolation of this subchapter. Allowable wastes at a particular solidwaste management facility may be determined by reviewing the followingregulations as applicable:
(1) §330.5 of this title (relating to Classificationof Municipal Solid Waste Facilities);
(2) Subchapter D of this chapter (relating to OperationalStandards for Municipal Solid Waste Landfill Facilities);
(3) Subchapter E of this chapter (relating to OperationalStandards for Municipal Solid Waste Storage and Processing Units);
(4) Chapter 312, Subchapters A - E of this title (relatingto General Provisions; Land Application and Storage of Biosolidsand Domestic Septage [Land Application for Beneficial Useand Storage at Beneficial Use Sites]; Surface Disposal; Pathogenand Vector Attraction Reduction; and Guidelines and Standards forSludge Incineration); and
(5) §330.15(e) of this title (relating to General Prohibitions).
(c) All transporters of solid waste shall maintainrecords for at least three years to document that waste was takento an authorized MSW facility. Upon request of the executive directoror of a local government with jurisdiction, a transporter is responsiblefor providing adequate documentation regarding the destination ofall collected waste including billing documents to prove that theproper disposal procedure is being followed.
(d) Each transporter delivering waste to a solid wastemanagement facility shall immediately remove any non-allowable wastesdelivered to the solid waste management facility or, at the optionof the disposal facility operator, pay any applicable surcharges tohave the disposal facility operator remove the non-allowable waste.
(e) If non-allowable wastes are discovered in a loadof waste being discharged at an MSW facility, the transporter shallimmediately take all necessary steps to determine the origin of thenon-allowable waste and to assure that non-allowable wastes are eithernot collected or are taken to a facility approved to accept such wastes.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402111
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER D. OPERATIONAL STANDARDS FOR MUNICIPAL SOLID WASTE LANDFILL FACILITIES30 TAC §§330.125, 330.147, 330.165, 330.171, 330.173
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.125.Recordkeeping Requirements.
(a) A copy of the permit, the approved site developmentplan, the site operating plan, the final closure plan, the post-closuremaintenance plan, the landfill gas management plan, and any otherrequired plan or other related document shall be maintained at themunicipal solid waste facility, or an alternate location approvedby the executive director. This requirement shall be considered apart of the operating record for the facility.
(b) The owner or operator shall within seven workingdays of completion or receipt of analytical data, as appropriate,record and retain in the operating record the following information:
(1) any and all location-restriction demonstrations;
(2) inspection records, training procedures, and notificationprocedures relating to excluding the receipt of prohibited waste;
(3) all results from gas monitoring and any remediationplans relating to explosive and other gases;
(4) any and all unit design documentation for the placementof leachate or gas condensate in a municipal solid waste landfill;
(5) any and all demonstration, certification, findings,monitoring, testing, and analytical data relating to groundwater monitoringand corrective action;
(6) closure and post-closure care plans and any monitoring,testing, or analytical data relating to post-closure requirements;
(7) any and all cost estimates and financial assurancedocumentation relating to financial assurance for closure and post-closure;
(8) any and all information demonstrating compliancewith the small community exemption criteria;
(9) copies of all correspondence and responses relatingto the operation of the facility, modifications to the permit, approvals,and other matters pertaining to technical assistance;
(10) any and all documents, manifests, shipping documents,trip tickets, etc., involving special waste;
(11) for any spray-applied alternative daily cover(ADC) material, records of the application rate and total amount ADCapplied to the working face on those days in which ADC is applied; and
(12) any other document(s) as specified by the approvedpermit or by the executive director.
(c) The owner or operator shall place all informationspecified in subsections (a) and (b) of this section in the operatingrecord. The owner or operator shall place this information in theoperating record in accordance with the time period specified in subsection(b) of this section and maintain the operating record in an organizedformat which allows the information to be easily located and retrieved.All information contained in the operating record must be furnishedupon request to the executive director and must be made availablefor inspection by the executive director.
(d) The owner or operator shall retain all informationcontained within the operating record and the different plans requiredfor the facility for the life of the facility including the post-closurecare period.
(e) The owner or operator shall maintain training recordsin accordance with §335.586(d) and (e) of this title (relatingto Personnel Training).
(f) The owner or operator shall maintain personneloperator licenses issued in accordance with Chapter 30, SubchapterF of this title (relating to Municipal Solid Waste Facility Supervisors),as required.
(g) The executive director may set alternative schedulesfor recordkeeping and notification requirements as specified in subsections(a) - (f) of this section, except for notification requirements containedin Subchapter M of this chapter (relating to Location Restrictions)for any proposed lateral expansion located within a six-mile radiusof any airport runway end used by turbojet or piston-type aircraftor notification relating to landowners whose property overlies anypart of the plume of contamination, if contaminants have migratedoff site as indicated by groundwater sampling.
(h) The owner or operator shall maintain records todocument the annual waste acceptance rate for the facility. Documentationmust include maintaining the quarterly solid waste summary reportsand the annual solid waste summary reports required by §330.675of this title (relating to Reports) in the operating record. Afteran updated site operating plan permit modification under §330.121(b)of this title (relating to General) is approved to comply with therules that became effective December 2, 2004, if the annual wasteacceptance rate exceeds the rate estimated in the landfill permitapplication and the waste increase is not due to a temporary occurrence,the owner or operator shall file an application to modify the permitapplication, including the revised estimated waste acceptance rate,in accordance with §305.70(l) [§305.70(k)]of this title (relating to Municipal Solid Waste Permit and RegistrationModifications), within 90 days of the exceedance as established bythe sum of the previous four quarterly summary reports. The applicationmust propose any needed changes in the site operating plan to managethe increased waste acceptance rate to protect public health and theenvironment. The increased waste acceptance rate may justify requiringpermit conditions that are different from or absent in the existingpermit. This subsection is not intended to make an estimated wasteacceptance rate a limiting parameter of a landfill permit.
§330.147.Disposal of Large Items.
(a) Large, heavy, or bulky items, that cannot be incorporatedin the regular spreading, compaction, and covering operations at landfillsshould be recycled. A special area should be established to collectthese items. This special collection area must be designated as alarge-item salvage area. The owner or operator shall remove the itemsfrom the site often enough to prevent these items from becoming anuisance and to preclude the discharge of any pollutants from the area.
(b) Items that can be classified as large, heavy, orbulky can include, but are not limited to, white goods (householdappliances), air conditioner units, metal tanks, large metal pieces,and automobiles.
(c) Refrigerators, freezers, air conditioners, andany other items containing chlorinated fluorocarbon (CFC) must behandled in accordance with 40 Code of Federal Regulations §82.156 [§82.156(f)], as amended.
§330.165.Landfill Cover.
(a) Daily cover for Type I and Type IAE landfills.Type I and IAE landfills must apply six inches of well-compacted earthenmaterial not previously mixed with garbage, rubbish, or other solidwaste at the end of each operating day to control disease vectors,fires, odors, windblown litter or waste, and scavenging, unless theexecutive director requires a more frequent interval to control diseasevectors, fires, odors, windblown litter or waste, and scavenging.Landfills that operate on a 24-hour basis must cover the working faceor active disposal area at least once every 24 hours. The executivedirector may require a chemical analysis of any landfill cover material.Runoff from areas that have intact daily cover is not considered ashaving come into contact with the working face or leachate.
(b) Daily cover for Type IV and Type IVAE landfills.All Type IV facilities must follow the requirements of this sectionexcept the rate of cover must be no less than weekly, unless the executivedirector approves another schedule. The executive director may requirea chemical analysis of any landfill cover material. Runoff from areasthat have intact weekly cover is not considered as having come intocontact with the working face or leachate.
(c) Intermediate cover. All areas that have receivedwaste but will be inactive for longer than 180 days must provide intermediateor final cover. This intermediate cover must include six inches ofsuitable earthen material that is capable of sustaining native plantgrowth and must be seeded or sodded following its application in orderto control erosion, or must be a material approved by the executivedirector that will otherwise control erosion. This intermediate covermust not be less than 12 inches of suitable earthen material. Theintermediate cover must be graded to prevent ponding of water. Plantgrowth or other erosion control features must be maintained. Runofffrom areas that have intact intermediate cover is not considered ashaving come into contact with the working face or leachate.
(d) Alternative daily cover. Alternative daily covermay only be allowed by a temporary authorization under §305.62(k)of this title (relating to Amendments) [§305.70(m)of this title (relating to Municipal Solid Waste Permit and RegistrationModifications)] followed by a major amendment or a modificationin accordance with §305.70(k)(1) of this title. Use of alternativedaily cover is limited to a 24-hour period after which either wasteor daily cover as defined in subsection (a) of this section must be placed.
(1) An alternative daily cover operating plan mustbe included in the request for temporary authorization or in a sitedevelopment plan that includes the following:
(A) a description and minimum thickness of the alternativematerial to be used;
(B) its effect on vectors, fires, odors, and windblownlitter and waste;
(C) the application and operational methods to be utilizedat the site when using this alternative material;
(D) chemical analysis of the material and/or the MaterialSafety Data Sheet(s) for the alternative material; and
(E) any other pertinent characteristic, feature, orother factors related to the use of this alternative material.
(2) A status report on the alternative daily covermust be submitted on a two-month basis to the executive director duringthe temporary authorization period describing the effectiveness ofthe alternative material, any problems that may have occurred, andcorrective actions required as a result of such problems. If no unresolvedproblems have occurred within the temporary authorization period,status reports may no longer be required.
(3) Alternative daily cover must not be allowed whenthe landfill is closed for a period greater than 24 hours, unlessthe executive director approves an alternative length of time.
(4) For contaminated soil proposed to be used as alternativedaily cover in a municipal solid waste landfill, the constituentsof concern shall not exceed the concentrations listed in Table 1,Constituents of Concern and Their Maximum Leachable Concentrations,located in §335.521(a)(1) of this title (relating to Appendices).Additionally, the contaminated soil must not contain:
(A) polychlorinated biphenyl wastes that are subjectto the disposal requirements of 40 Code of Federal Regulations Part 761; or
(B) total petroleum hydrocarbons in concentrationsgreater than 1,500 milligrams per kilogram. The owner or operatormay submit a demonstration for executive director approval that materialexceeding 1,500 milligrams per kilogram (mg/kg) total petroleum hydrocarbonscan be a suitable alternative daily cover. The demonstration shallinclude information regarding the risk to human health and the environmentand the information required in paragraph (1) of this subsection.If approved, the executive director may impose additional permit requirementsregarding the use of this material.
(5) Alternative daily cover must not exceed constituentlimitations imposed on waste authorized to be disposed at the facility.
(6) The executive director may require the owner oroperator to test runoff from areas that have alternative daily coverfor compliance with Texas Pollutant Discharge Elimination System stormwater discharge limits or manage the runoff as contaminated water.
(e) Temporary waiver. The executive director may granta temporary waiver from the requirements of subsections (a) - (d)of this section if the owner or operator demonstrates that there areextreme seasonal climatic conditions that make meeting such requirements impractical.
(f) Final cover. Final cover for the landfill mustbe in accordance with the site closure plan and Subchapter K of thischapter (relating to Closure and Post-Closure).
(g) Erosion of cover. Erosion gullies or washed-outareas deep enough to jeopardize the final or intermediate cover mustbe repaired within five days of detection by restoring the cover material,grading, compacting, and seeding unless the commission's regionaloffice approves otherwise, based on the extent of the damage requiringmore time to repair or the repairs are delayed because of weatherconditions. An eroded area is considered to be deep enough to jeopardizethe final or intermediate cover if it exceeds four inches in depthas measured from the vertical plane from the erosion feature and the90-degree intersection of this plane with the horizontal slope faceor surface. The date of detection of erosion and date of completionof repairs, including reasons for any delays, must be documented inthe cover inspection record required under subsection (h) of thissection. The site operating plan must establish a frequency, and identifyother occasions, for conducting inspections of the final and intermediatecovers to detect the need for repairs. The periodic inspections andrestorations are required during the entire operational life and forthe post-closure maintenance period.
(h) Cover inspection record. Each landfill must keepa cover application record on site readily available for inspectionby commission representatives and authorized agents or employees oflocal governments having jurisdiction. This record must specify thedate cover (no exposed waste) was accomplished, how it was accomplished,and the last area covered. This applies to daily, intermediate, andalternative daily cover. For final cover, this record must specifythe area covered, the date cover was applied, and the thickness appliedthat date. Each entry must be certified by the signature of the on-sitesupervisor that the work was accomplished as stated in the record.The cover inspection record must document inspections required undersubsection (g) of this section, the findings, and corrective actiontaken when necessary.
§330.171.Disposal of Special Wastes.
(a) Type IV and Type IVAE landfills may accept specialwastes consistent with the limitations established in §330.5(a)(2)of this title (relating to Classification of Municipal Solid WasteFacilities) and the waste acceptance plan required by §330.61(b)of this title (relating to Contents of Part II of the Application).
(b) The acceptance and/or disposal of a special wasteas defined in §330.3 of this title (relating to Definitions),that is not specifically identified in subsection (c) or (d) of thissection, or in §330.173 of this title (relating to Disposal ofIndustrial Wastes), requires prior written approval from the executive director.
(1) Approvals will be waste-specific and/or site-specificand will be granted only to appropriate facilities operating in compliancewith this chapter.
(2) Requests for approval to accept special wastesmust be submitted by the generator to the executive director or toa facility with an approved Special Waste Management Plan [plan] and must include, but are not limited to, the following:
(A) a complete description of the chemical and physicalcharacteristics of each waste, a statement as to whether or not eachwaste is a Class 1 industrial waste as defined in §330.3 of thistitle, and the quantity and rate at which each waste is produced and/orthe expected frequency of disposal;
(B) for Class 1 industrial solid waste, a hazardouswaste determination as required by §335.504 of this title(relating to Hazardous Waste Determination) [§335.6(c)of this title (relating to Notification Requirements)];
(C) an operational plan containing the proposed proceduresfor handling each waste and listing required protective equipmentfor operating personnel and on-site emergency equipment; and
(D) a contingency plan outlining responsibility forcontainment and cleanup of any accidental spills occurring duringthe delivery and/or disposal operation.
(3) A vacuum truck, as used in this section, refersto any vehicle that transports liquid waste to a solid waste disposalor processing facility. A vacuum truck must transport liquid wasteto a landfill that has a sludge stabilization and solidification processor to a Type V processing facility for sludge, grease trap, or grittrap waste. The owner or operator shall submit written notificationto the executive director of the liquids-processing activity as requiredin §330.11 of this title (relating to Notification Required).
(4) Soils contaminated by petroleum products, crudeoils, or chemicals in concentrations of greater than 1,500 milligramper kilogram (mg/kg) total petroleum hydrocarbons; or contaminatedby constituents of concern that exceed the concentrations listed inTable 1, Constituents of Concern and Their Maximum Leachable Concentrationsin §335.521(a)(1) of this title (relating to Appendices) mustbe disposed in dedicated cells that meet the requirements of §330.331(e)of this title (relating to Design Criteria).
(5) The executive director may authorize the receiptof special waste with a written concurrence from the owner or operator;however, the facility operator is not required to accept the waste.
(6) The executive director may revoke an authorizationto accept special waste if the owner or operator does not maintaincompliance with these rules or conditions imposed in the authorizationto accept special waste.
(c) Receipt of the following special wastes does notspecifically require written authorization for acceptance providedthe waste is handled in accordance with the noted provisions for each waste.
(1) Medical wastes that have not been treated in accordancewith the procedures specified in Chapter 326 of this title (relatingto Medical Waste Management) must not be accepted at a landfill unlessauthorized in writing by the executive director. The executive directormay provide this authorization when a situation exists that requiresdisposal of untreated medical wastes in order to protect the humanhealth and the environment from the effects of a natural or man-made disaster.
(2) Dead animals and/or slaughterhouse waste may beaccepted at any Type I or Type IAE landfill without further approvalfrom the executive director provided the carcasses and/or slaughterhousewaste are covered by three feet of other solid waste or at least twofeet of earthen material immediately upon receipt.
(3) Regulated asbestos-containing material (RACM) asdefined in 40 Code of Federal Regulations Part 61 may be acceptedat a Type I or Type IAE landfill in accordance with subparagraphs(A) - (I) of this paragraph provided the landfill has been authorizedto accept RACM. The facility operator proposing to accept RACM shallprovide written notification to the executive director of the intentto accept RACM.
(A) To receive authorization to accept RACM, the owneror operator shall dedicate a specific area or areas of the landfillto receive RACM and shall provide written notification to the executivedirector of the area or areas to be designated for receipt of RACM.After initial authorization to receive RACM is issued, additionalareas may be designated by providing written notice to the executive director.
(B) The location of the area designated to receivethe RACM must be surveyed and marked by a registered professionalland surveyor and identified on a current site diagram that is maintainedat the landfill. A copy of the current site diagram identifying theRACM area must be submitted to the executive director immediatelyupon completion of the diagram. The operator shall maintain a recordof each load of RACM accepted as to its location, depth, and volumeof material.
(C) Upon closure of the unit that accepted RACM, aspecific notation that the facility accepted RACM must be placed inthe deed records for the facility with a diagram identifying the RACMdisposal areas. Concurrently, a notice of the deed recordation anda copy of the diagram identifying the asbestos disposal areas mustbe submitted to the executive director.
(D) Delivery of the RACM to the landfill unit mustbe coordinated with the on-site supervisor so the waste will arriveat a time it can be properly handled and covered.
(E) RACM must only be accepted at the facility in tightlyclosed and unruptured containers or bags or must be wrapped with atleast six-mil polyethylene.
(F) The bags or containers holding the RACM must beplaced below natural grade level. Where this is not possible or practical,provisions must be made to ensure that the waste will not be subjectto future exposure through erosion or weathering of the intermediateand/or final cover. RACM that is placed above natural grade must belocated in the landfill unit such that it is, at closure of the landfillunit, not less than 20 feet from any final side slope of the unitand must be at least ten feet below the final surface of the unit.
(G) The bags or containers holding the RACM must becarefully unloaded and placed in the final disposal location. TheRACM must be covered immediately with 12 inches of earthen materialor three feet of solid waste containing no asbestos. Care must beexercised in the application of the cover so that the bags or containersare not ruptured.
(H) A contingency plan in the event of accidental spills(e.g., ruptured bags or containers) shall be prepared by the owneror operator prior to accepting RACM. The plan must specify the responsibleperson(s) and the procedure for the collection and disposal of thespilled material.
(I) RACM that has been designated as a Class 1 industrialwaste may be accepted by a Type I landfill authorized to accept RACMprovided the RACM waste is handled in accordance with the provisionsof this paragraph and the landfill operator complies with the provisionsof §330.173(g) - (i) of this title.
(4) Nonregulated asbestos-containing materials (non-RACM)may be accepted for disposal at a Type I, Type IAE, Type IV, or TypeIVAE landfill provided the wastes are placed on the active workingface and covered in accordance with this chapter. Under no circ*mstancesmay any material containing non-RACM be placed on any surface or roadwaythat is subject to vehicular traffic or disposed of by any other meansby which the material could be crumbled into a friable state.
(5) Empty containers that have been used for pesticides,herbicides, fungicides, or rodenticides must be disposed of in accordancewith subparagraphs (A) and (B) of this paragraph.
(A) These containers may be disposed of at any landfillprovided that:
(i) the containers are triple-rinsed prior to receiptat the landfill;
(ii) the containers are rendered unusable prior toor upon receipt at the landfill; and
(iii) the containers are covered by the end of thesame working day they are received.
(B) Those containers for which triple-rinsing is notfeasible or practical (e.g., paper bags, cardboard containers) maybe disposed of under the provisions of paragraph (6) of this subsectionor in accordance with §330.173 of this title, as applicable.
(6) Municipal hazardous waste from a very smallquantity generator (VSQG) [conditionally exempt small quantitygenerator] may be accepted at a Type I or Type IAE landfillwithout further approval from the executive director provided the hazardouswaste is not regulated hazardous waste, was not generated by a VSQGduring a calendar month in which the VSQG generated hazardous wasteduring an episodic event, and the amount of hazardous waste [amountof waste] does not exceed 220 pounds (100 kilograms) per monthper generator, and provided the landfill owner or operator authorizesacceptance of the waste.
(7) Sludge, grease trap waste, grit trap waste, orliquid wastes from municipal sources can be accepted at a Type I orType IAE landfill for disposal only if the material has been, or isto be, treated or processed and the treated/processed material hasbeen tested, in accordance with Test Method 9095 (Paint Filter LiquidsTest), as described in "Test Methods for Evaluating Solid Wastes,Physical/Chemical Methods" (United States Environmental ProtectionAgency Publication Number SW-846), as amended, and is certified tocontain no free liquids. Prior to treatment or processing of thiswaste at the landfill, the owner or operator shall submit writtennotification to the executive director of the liquids processing activityas required in §330.11 of this title.
(d) Used oil filters from internal combustion enginesmust not be intentionally and knowingly accepted for disposal at landfillspermitted under this chapter except as provided in paragraphs (1)and (2) of this subsection.
(1) Used oil filters must not be offered for disposalby a generator and/or be intentionally and knowingly accepted forlandfill disposal unless the filter has been:
(A) crushed to less than 20% of its original volumeto remove all free-flowing used oil; or
(B) processed by a method other than crushing to removeall free-flowing used oil. A filter is considered to have been processed if:
(i) the filter has been separated into component partsand the free-flowing used oil has been removed from the filter elementby some means of compression in order to remove free-flowing used oil;
(ii) the used filter element of a filter consistingof a replaceable filtration element in a reusable or permanent housinghas been removed from the housing and pressed to remove free-flowingused oil; or
(iii) the housing is punctured and the filter is drainedfor at least 24 hours.
(2) Used oil filters (to include filters that havebeen crushed and/or processed to remove free-flowing used oil) mustnot be offered for landfill disposal by any non-household generatorand must not be intentionally or knowingly accepted by any landfillpermitted and regulated under this chapter.
§330.173.Disposal of Industrial Wastes.
(a) Except as specified in subsection (c) of this section,Class 1 industrial solid waste shall not be disposed in a Type IAElandfill unit.
(b) Generators shall manifest Class 1 industrial solidwaste as required by §335.10 of this title (relating toShipping and Reporting Procedures Applicable to Generators of HazardousWaste or Class 1 Waste [(relating to Shipping and ReportingProcedures Applicable to Generators of Hazardous Waste or Class 1Waste and Primary Exporters of Hazardous Waste]). Owners oroperators of municipal solid waste landfill facilities shall not acceptsuch wastes without prior written approval from the executive directorand specific authorization in the permit.
(c) Wastes that are Class 1 only because of asbestoscontent may be accepted at any Type I or Type IAE landfill that isauthorized to accept regulated asbestos-containing material (RACM)as stated in §330.171(c)(3)(I) of this title (relating to Disposalof Special Wastes). Authorization to accept this waste is impliedin the authorization to accept RACM unless the acceptance of industrialwastes is prohibited by the permit. All Class 1 industrial asbestoswastes must be manifested and the owner or operator of the landfillfacility shall comply with the requirements of subsections (g) and(h) of this section.
(d) Unless the facility permit authorizes the acceptanceof a specified type of Class 1 industrial waste, an authorizationto accept specific types of Class 1 wastes will be waste-specificand site-specific and will be granted only to appropriate facilitiesthat are operating in compliance with this chapter. Requests for authorizationto accept Class 1 solid wastes must be submitted in writing to theexecutive director and must include, but are not limited to, the following:
(1) a complete description of the chemical and physicalcharacteristics of the waste in accordance with §335.587 of thistitle (relating to Waste Analysis), a statement as to whether or notthe waste is a hazardous waste as defined in §330.3 of this title(relating to Definitions), and the quantity and rate at which thewaste is produced and/or the expected frequency of disposal;
(2) an operational plan containing the proposed proceduresfor handling the waste and a listing of required protective equipmentfor operating personnel and on-site emergency equipment. This planmust become a part of the site operating plan; and
(3) a written contingency plan meeting the requirementsof §335.589 of this title (relating to Contingency Plan). Thisplan shall become a part of the site operating plan.
(e) Unless specifically authorized by the facilitypermit, a Type I or Type IAE landfill facility permitted after October9, 1993, may not accept Class 1 industrial solid wastes in excessof 20% of the total amount of waste (not including Class 1 wastes)accepted during the current or previous year. The amount of wastemay be determined by volume or by weight, but the same unit of measuremust be used for each year, unless a variance is authorized by theexecutive director.
(f) Any authorization to accept Class 1 waste is subjectto the site operating in compliance with these rules and any specificconditions required under any letter(s) of authorization. Failureto operate the site in compliance with these rules or any specialconditions imposed by the executive director may result in revocationof the authorization to accept a Class 1 waste.
(g) All shipments of Class 1 waste must be accompaniedby a manifest in compliance with §335.10(c) of this title(relating to Shipping and Reporting Procedures Applicable to Generatorsof Hazardous Waste or Class 1 Waste). The facility operator shallcomply with the manifest requirements in §335.15(1) and (3) ofthis title (relating to Recordkeeping and Reporting Requirements Applicableto Owners and Operators of Treatment, Storage, or Disposal Facilities). [(waste-shipping control ticket) as required by the commission. Thefacility operator or a designated representative shall sign the manifestfor any authorized shipments of Class 1 waste.] The facilityoperator shall not accept or sign for shipments of Class 1 waste forwhich the authorization to accept has not been granted by the executivedirector or has not been authorized by permit provisions. The facilityoperator shall retain the disposal facility copy of the manifest fora period of three years. This time period is automatically extendedif any enforcement action involving the owner, operator, or landfillfacility is initiated or pending by the executive director.
(h) A facility that accepts any Class 1 waste mustsubmit to the executive director a written report of Class 1 wastereceived. This report must be submitted no later than the 25th dayof the month following the month that the waste was received. Reportsmust be submitted on forms provided by the commission and must includeall information required. Monthly reports must be submitted by facilitiesthat have received Class 1 wastes including those months in whichno Class 1 waste is received at the facility unless an exception isgranted by the executive director. Failure to submit the reports requiredby this subsection in a timely manner is a violation of these rules.
(i) Class 2 industrial solid waste, except specialwastes as defined in §330.3 of this title, may be accepted atany Type I or Type IAE landfill provided the acceptance of this wastedoes not interfere with facility operation. Type IV and Type IVAElandfills may accept Class 2 industrial solid waste consistent withthe limitations established in §330.5(a)(2) of this title (relatingto Classification of Municipal Solid Waste Facilities) and the wasteacceptance plan required by §330.61(b) of this title (relatingto Contents of Part II of the Application).
(j) Class 3 industrial solid waste may be disposedof at a Type I, Type IAE, Type IV, or Type IVAE landfill providedthe acceptance of this waste does not interfere with facility operation.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402112
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER E. OPERATIONAL STANDARDS FOR MUNICIPAL SOLID WASTE STORAGE AND PROCESSING UNITSStatutory Authority
The amendment is proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; Texas Health and Safety Code (THSC),§361.011, which grants the commission authority over municipalsolid waste; THSC, §361.017, which grants the commission jurisdictionover industrial solid waste and hazardous municipal waste; and THSC,§361.024, which authorizes the commission to adopt rules consistentwith the general purposes of the Solid Waste Disposal Act.
The proposed amendment implements House Bill 3060, 88th Texas Legislature, 2023.
§330.217.Pre-Operation Notice.
(a) Type V mobile liquid waste processing unit demonstrationof viability.
(1) The owner or operator shall not initiate operationof each unit until a pre-operation inspection of each mobile unithas been conducted and the executive director gives written authorizationto accept waste. The owner or operator shall demonstrate under fieldconditions that the process works. The demonstration shall be conductedunder the supervision of experienced executive director staff andwhen appropriate, with local government staff. The viability demonstrationshall be made by processing three traps in a single day representativeof the traps normally serviced. The traps must have been in operationand not have been serviced for at least 30 days prior to the demonstration.The volume of material to be processed before unloading must be consistentwith manufacturer's performance specifications and the operating plan,particularly as to the expected ratios between gross volumes processedand amounts discharged following processing. Multiple grab samplesof effluent taken from the discharge outlet of the mobile processingunit must be tested for fats, oils, greases, and pH and be designedand operated to meet the effluent limits imposed by its treatmentfacility permitted under Texas Water Code, Chapter 26, Texas PollutantDischarge Elimination System, or the liquid effluent limits specifiedin §330.207(g) [§330.207(h)] of thistitle (relating to Contaminated Water Management) if the dischargepoints do not require compliance with locally set limits.
(2) Waste solids (sludges) produced by the mobile processingunit must be disposed of in a solid waste disposal facility regulatedby the State of Texas or other location approved by the executivedirector. Solids should be dewatered to the point that they pass theUnited States Environmental Protection Agency (EPA) paint filter test,EPA Test Method 9095, or they should be taken to an authorized facilityto be dewatered prior to landfilling.
(3) The owner or operator shall remain responsiblefor making corrections or changes that are necessary to meet requirementsprior to operating the mobile unit.
(b) Type VI demonstration projects for liquid wasteprocessing facilities. The operation of the facility shall not beginuntil a pre-opening inspection has been conducted and written authorizationto accept waste has been given by the executive director.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402113
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER J. GROUNDWATER MONITORING AND CORRECTIVE ACTIONStatutory Authority
The amendment is proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; Texas Health and Safety Code (THSC),§361.011, which grants the commission authority over municipalsolid waste; THSC, §361.017, which grants the commission jurisdictionover industrial solid waste and hazardous municipal waste; and THSC,§361.024, which authorizes the commission to adopt rules consistentwith the general purposes of the Solid Waste Disposal Act.
The proposed amendment implements House Bill 3060, 88th Texas Legislature, 2023.
§330.421.Monitor Well Construction Specifications.
(a) Monitoring well construction. Monitoring well constructionshall provide for maintenance of the integrity of the bore hole, collectionof representative groundwater samples from the water-bearing zone(s)of concern, and prevention of migration of groundwater and surfacewater within the bore hole. The following specifications must be usedfor the installation of groundwater monitoring wells at municipalsolid waste landfills. Equivalent alternatives to these specificationsmay be used if prior written approval is obtained in advance fromthe executive director.
(1) Drilling.
(A) Monitoring wells must be drilled by a Texas-licenseddriller who is qualified to drill and install monitoring wells. Theinstallation and development shall be supervised by a licensed professionalgeoscientist or engineer who is familiar with the geology of the area.
(B) The well shall be drilled by a method that willallow installation of the casing, screen, etc., and that will notintroduce contaminants into the borehole or casing. Drilling techniquesused for boring shall take into account the materials to be drilled,depth to groundwater, total depth of the hole, adequate soil sampling,and other such factors that affect the selection of the drilling method.If any fluids are necessary in drilling or installation, then clean,treated city water shall be used; other fluids must be approved inwriting by the executive director before use. If city water is used,a current chemical analysis of the city water shall be provided withthe monitor-well report.
(C) The diameter of the boring shall be at least fourinches larger than the diameter of the casing. When the boring isin hard rock, a smaller annulus may be approved by the executive director.
(D)A log of the boring shall be made by or under thesupervision of a licensed professional geoscientist or engineer whois familiar with the geology of the area, and shall be sealed, signed,and dated by the licensed professional.
(2) Casing, screen, filter pack, and seals.
(A) The well casing shall be: two to four inches indiameter; National Sanitation Foundation-certified polyvinylchloride [National Science Foundation-certified polyvinylchloride] (PVC) Schedule 40 or 80 pipe, flush-thread, screwjoint (no glue or solvents); polytetrafluorethylene (PTFE, such asTeflon) tape or O-rings in the joints; no collar couplings. The topof the casing shall be at least two feet above ground level. Wherehigh levels of volatile organic compounds or corrosive compounds areanticipated, stainless steel or PTFE casing and screen may be used,subject to approval by the executive director. Four-inch diametercasing is recommended because it allows larger volume samples to beobtained and provides easier access for development, pumps, and repairs.The casing shall be cleaned and packaged at the place of manufacture;the packaging shall include a PVC wrapping on each section of casingto keep it from being contaminated prior to installation. The casingshall be free of ink, labels, or other markings. The casing (and screen)shall be centered in the hole to allow installation of a good filterpack and annular seal. Centralizers are recommended on wells oversix meters (20 feet) in length, but may not be needed if the wellsare installed through hollow-stem augers. The top of the casing shallbe protected by a threaded or slip-on top cap or by a sealing capor screw-plug seal inserted into the top of the casing. The cap shallbe vented to prevent buildup of methane or other gases and shall bedesigned to prevent moisture from entering the well.
(B) The screen shall be compatible with the casingand should generally be of the same material. The screen shall notinvolve the use of any glues or solvents for construction. A wire-woundscreen is recommended to provide maximum inflow area. Field-cut slotsare not permitted for well screen. Filter cloth shall not be used.A blank-pipe sediment trap, typically one to two feet, should be installedbelow the screen. A bottom cap is typically placed on the bottom ofthe sediment trap. The sediment trap shall not extend through thelower confining layer of the water-bearing zone being tested. Screensterilization methods are the same as those for casing. Selectionof the size of the screen opening should be done by a person experiencedwith such work and shall include consideration of the distributionof particle sizes both in the water-bearing zone and in the filterpack surrounding the screen. The screen opening shall not be largerthan the smallest fraction of the filter pack.
(C) The filter pack, placed between the screen andthe well bore, shall consist of prepackaged, inert, clean silica sandor glass beads; it shall extend from one to four feet above the topof the screen. Open stockpile sources of sand or gravel are not permitted.The filter pack usually has a 30% finer grain size that is about fourto ten times larger than the 30% finer grain size of the water-bearingzone; the filter pack should have a uniformity coefficient less than2.5. The filter pack should be placed with a tremie pipe to ensurethat the material completely surrounds the screen and casing withoutbridging. The tremie pipe shall be steam cleaned prior to the firstwell and before each subsequent well.
(D) The annular seal shall be placed on top of thefilter pack and shall be at least two feet thick. It should be placedin the zone of saturation to maintain hydration. The seal should becomposed of coarse-grain sodium bentonite, coarse-grit sodium bentonite,or bentonite grout. Special care should be taken to ensure that finematerial or grout does not plug the underlying filter pack. Placementof a few inches of prepackaged clean fine sand on top of the filterpack will help to prevent migration of the annular seal material intothe filter pack. The seal should be placed on top of the filter packwith a steam-cleaned tremie pipe to ensure good distribution and shouldbe tamped with a steam-cleaned rod to determine that the seal is thickenough. The bentonite shall be hydrated with clean water prior toany further activities on the well and left to stand until hydrationis complete (eight to 12 hours, depending on the grain size of thebentonite). If a bentonite-grout (without cement) casing seal is usedin the well bore, then it may replace the annular seal described inthis paragraph.
(E) A casing seal shall be placed on top of the annularseal to prevent fluids and contaminants from entering the boreholefrom the surface. The casing seal shall consist of a commercial bentonitegrout or a cement-bentonite mixture. Drilling spoil, cuttings, orother native materials are not permitted for use as a casing seal.Quick-setting cements are not permitted for use because contaminantsmay leach from them into the groundwater. The top of the casing sealshall be between five and two feet from the surface.
(3) Concrete pad. High-quality structural-type concreteshall be placed from the top of the casing seal (two to five feetbelow the surface) continuously to the top of the ground to form apad at the surface. This formed surface pad shall be at least sixinches thick and not less than four (preferably six) feet square orfive (preferably six) feet in diameter. The pad shall contain sufficientreinforcing steel to ensure its structural integrity in the eventthat soil support is lost. The top of the pad shall slope away fromthe well bore to the edges to prevent ponding of water around thecasing or collar.
(4) Protective collar. A steel protective pipe collarshall be placed around the casing "stickup" to protect it from damageand unwanted entry. The collar shall be set at least one foot intothe surface pad during its construction and should extend at leastthree inches above the top of the well casing (and top cap, if present).The top of the collar shall have a lockable hinged top flap or cover.A sturdy lock shall be installed, maintained in working order, andkept locked when the well is not being bailed/purged or sampled. Thewell number or other designation shall be marked permanently on theprotective steel collar; it is useful to mark the total depth of thewell and its elevation on the collar.
(5) Protective barrier. Where monitoring wells arelikely to be damaged by moving equipment or are located in heavilytraveled areas, a protective barrier shall be installed. A typicalbarrier is three or four six- to 12-inch diameter pipes set in concretejust off the protective pad. The pipes can be joined by pipes weldedbetween them, but consideration must be given to well access for samplingand other activities. Separation of such a pipe barrier from the padmeans that the barrier can be damaged without risk to the pad andwell. Other types of barriers may be approved by the executive director.
(b) Unusual conditions. Where monitoring wells areinstalled in unusual conditions, all aspects of the installation shallbe approved in writing in advance by the executive director. Suchaspects include, for example, the use of cellar-type enclosures forthe top-well equipment or multiple completions in a single hole.
(c) Development. After a monitoring well is installed,it shall be developed to remove artifacts of drilling (clay films,bentonite pellets in the casing, etc.) and to open the water-bearingzone for maximum flow into the well. Development should continue untilall of the water used or affected during drilling activities has beenremoved and field measurements of pH, specific conductance, and temperaturehave stabilized. Failure to develop a well properly may mean thatit is not properly monitoring the water-bearing zone or may not yieldadequate water for sampling even though the water-bearing zone is prolific.
(d) Location and elevation. Upon completion of a monitoringwell, the location of the well and all appropriate elevations associatedwith the top-well equipment shall be surveyed by a registered professionalsurveyor. The elevation shall be surveyed to the nearest 0.01 footabove mean sea level (with year of the sea-level datum shown). Thepoint on the well casing for which the elevation was determined shallbe permanently marked on the casing. The location shall be given interms of the latitude and longitude at least to the nearest tenthof a second or shall be accurately located with respect to the landfillgrid system described in §330.143(b)(5) of this title (relatingto Landfill Markers and Benchmark).
(e) Reporting. Monitoring well installation and constructiondetails must be submitted on forms available from the commission andmust be completed and submitted within 60 days of well completion.A copy of the detailed geologic log of the boring, a description ofdevelopment procedures, any particle size or other sample data fromthe well, and a site map drawn to scale showing the location of allmonitoring wells and the point of compliance must be submitted tothe executive director at the same time. The licensed driller shouldbe familiar with the forms required by other agencies; a copy of thoseforms must also be submitted to the commission.
(f) Damaged wells. Any monitoring well that is damagedto the extent that it is no longer suitable for sampling shall bereported to the executive director, who may make a determination aboutwhether to repair or replace the well.
(g) Plugging and abandonment. Any monitoring well thatis no longer used shall be properly abandoned and plugged in accordancewith 16 TAC §76.72 [16 TAC §76.702](relating to Responsibilities of the Licensee and Landowner--WellDrilling, Completion, Capping and Plugging) and §76.104(relating to Technical Requirements--Standards for Capping and Pluggingof Wells and Plugging Wells that Penetrate Injurious Water Zones) [§76.1004 (relating to Technical Requirements--Standards for Cappingand Plugging of Wells and Plugging Wells that Penetrate UndesirableWater or Constituent Zones)]. No abandonment shall take placewithout prior authorization in writing by the executive director.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402114
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER M. LOCATION RESTRICTIONSStatutory Authority
The amendment is proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; Texas Health and Safety Code (THSC),§361.011, which grants the commission authority over municipalsolid waste; THSC, §361.017, which grants the commission jurisdictionover industrial solid waste and hazardous municipal waste; and THSC,§361.024, which authorizes the commission to adopt rules consistentwith the general purposes of the Solid Waste Disposal Act.
The proposed amendment implements House Bill 3060, 88th Texas Legislature, 2023.
§330.545.Airport Safety.
(a) Owners or operators of new municipal solid wastelandfill units, existing municipal solid waste landfill units, verticalor lateral expansions, and landfill mining operations that are locatedwithin 10,000 feet of any airport runway end used by turbojet aircraftor within 5,000 feet of any airport runway end used by only piston-typeaircraft shall demonstrate that the units are designed and operatedso that the municipal solid waste landfill unit does not pose a birdhazard to aircraft.
(b) Owners or operators proposing to site new municipalsolid waste landfill units and lateral expansions located within asix-mile radius of any small general service airport runway end usedby turbojet or piston-type aircraft shall notify the affected airportand the Federal Aviation Administration. Owners or operators proposingto site new municipal solid waste landfill units and lateral expansionslocated within a five-mile radius of any large general public commercialairport runway end used by turbojet or piston-type aircraft shallnotify the affected airport and the Federal Aviation Administration.
(c) The owner or operator shall submit the demonstrationin subsection (a) of this section with a permit application or a permitamendment application. The demonstration will be considered a partof the operating record once approved.
(d) Landfills disposing of putrescible waste shallnot be located in areas where the attraction of birds can cause asignificant bird hazard to low-flying aircraft. [Guidelines regardinglocation of landfills near airports can be found in Federal AviationAdministration Order 5200.5(A), January 31, 1990.] All landfillfacilities within a six-mile radius of any small general service airportrunway or within a five-mile radius of any large general public commercialairport runway shall be critically evaluated to determine if an incompatibility exists.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402115
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER N. LANDFILL MININGStatutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.613.Sampling and Analysis Requirements for Final Soil Product.
(a) Applicability. Facilities that receive a registrationunder this subchapter are required to test their final product inaccordance with this section.
(b) Analytical methods. Facilities that use analyticalmethods to characterize their final product must use methods suchas those described in the following publications.
(1) Chemical and physical analysis shall utilize:
(A) "Test Methods for the Evaluation of Solid Waste,Physical/Chemical Methods" (SW-846); or
(B) "Methods for Chemical Analysis of Water and Wastes" (EPA-600).
(2) Analysis of pathogens shall utilize "Standard Methodsfor the Examination of Water and Wastewater" (Water Pollution ControlFederation, 1995).
(3) Analysis for salinity and pH shall utilize NorthCentral Regional (NCR) Method 14 for Saturated Media Extract Methodcontained in "Recommended Test Procedure for Greenhouse Growth Media"NCR Publication Number 221 (Revised), Recommended Chemical Soil TestProcedures, Bulletin Number 49 (Revised), October 1988, pages 34-37.
(4) Analysis of total, fixed, and volatile solids shallutilize Method 2540 G (Total, Fixed, and Volatile Solids in Solidand Semi-solid Samples) as described in "Standard Methods for theExamination of Water and Wastewater" (Water Pollution Control Federation, 1995).
(c) Sample collection. Sample collection, preservation,and analysis shall assure valid and representative results in accordancewith National Environmental Laboratory Accreditation Conference(NELAC) standards [Subchapter F of this chapter (relatingto Analytical Quality Assurance and Quality Control)].
(d) Documentation.
(1) Owners or operators of registered facilities shallrecord and maintain all of the following information regarding theiractivities of operation for three years after the final product isshipped off-site or upon facility closure:
(A) batch numbers identifying the final product sampling batch;
(B) the quantities, types, and sources of materialsprocessed and the dates processed;
(C) the quantity and final product grade assigned describedin §330.615 of this title (relating to Final Soil Product Gradesand Allowable Uses);
(D) the date of sampling; and
(E) all analytical data used to characterize the finalproduct, including laboratory quality assurance/quality control data.
(2) The following records shall be maintained on-sitepermanently or until facility closure:
(A) sampling plan and procedures;
(B) training and certification records of staff; and
(C) final soil product test results.
(3) Records shall be available for inspection by executivedirector representatives during normal business hours.
(4) The executive director may at any time requestby registered or certified mail that a soil generator submit copiesof all documentation listed in paragraph (1) of this subsection forauditing the final soil product grade. Documentation requested underthis section shall be submitted within ten working days of receiptof the request.
(e) Sampling frequencies. All final soil product mustbe sampled and assigned a final product grade set forth in §330.615of this title at a minimum rate of one sample for every 5,000 cubicyard batch of final soil product or annually, whichever is more frequent.Each sample will be a composite of nine grab samples as discussedin subsection (f) of this section.
(f) Sampling requirements. The operator shall utilizethe sampling methods specified in NELAC standards [protocolspecified in Subchapter F of this chapter]. The executive directormay at any time request that split samples be provided to an agencyrepresentative. Specific sampling requirements that must be satisfiedinclude those listed in paragraphs (1) and (2) of this subsection.
(1) Sampling from stockpiles. One-third of the grabsamples shall be taken from the base of the stockpile (at least 12inches into the pile at ground level), one-third from the exposedsurface, and one-third from a depth of two feet from the exposed surfaceof the stockpile.
(2) Sampling from conveyors. Sampling times shall beselected randomly at frequencies that provide the same number of subsamplesper volume of mined soil product as is required in subsection (d)of this section.
(A) If samples are taken from a conveyor belt, thebelt shall be stopped at that time. Sampling shall be done along theentire width and depth of the belt.
(B) If samples are taken as the material falls fromthe end of a conveyor, the conveyor does not need to be stopped. Free-fallingsamples need to be taken to minimize the bias created as larger particlessegregate or heavier particles sink to the bottom as the belt moves.In order to minimize sampling bias, the sample container shall bemoved in the shape of a "D" under the falling product to be sampled.The flat portion of the "D" shall be perpendicular to the beltline.The circular portion of the "D" shall be accomplished to return thesampling container to the starting point in a manner so that no productto be sampled is included.
(g) Analytical requirements. The final product subjectto the sampling requirements of this section will be tested for allof the following parameters. The executive director may at any timerequest that additional parameters be tested. These parameters areintended to address public health and environmental protection:
(1) total metals, to include:
(A) arsenic;
(B) cadmium;
(C) chromium;
(D) copper;
(E) lead;
(F) mercury;
(G) molybdenum;
(H) nickel;
(I) selenium; and
(J) zinc;
(2) weight percent of foreign matter, dry weight basis;
(3) pH by the saturated media extract method;
(4) salinity by the saturated media extract electricalconductivity method;
(5) pathogens:
(A) salmonella; and
(B) fecal coliform;
(6) polychlorinated-biphenyls; and
(7) asbestos.
(h) Data precision and accuracy. Analytical data qualityshall be established in accordance with NELAC standards [as specified in Subchapter F of this chapter].
(i) Reporting requirements.
(1) Facilities must report the following informationto the executive director on a semiannual basis for each samplingbatch of final soil product. Reports must include, but may not belimited to, all of the following information:
(A) batch numbers identifying the final soil productsampling batch;
(B) the quantities and types of waste materials processedand the dates processed;
(C) the quantity of final soil product;
(D) the final soil product grade or permit number ofthe disposal facility receiving the final product if it is not Grade1 or Grade 2 as established in §330.615 of this title;
(E) all analytical results used to characterize thefinal soil product, including laboratory quality assurance/qualitycontrol data and chain-of-custody documentation; and
(F) the date of sampling.
(2) Reports must be submitted to the executive directorwithin two months after the reporting period ends.
§330.615.Final Soil Product Grades and Allowable Uses.
(a) Applicability. Facilities that receive a registrationunder this subchapter are required to test final soil products inaccordance with this section.
(b) Final soil product testing. The final soil productshall be regularly tested under §330.613 of this title (relatingto Sampling and Analysis Requirements for Final Soil Product) to determinethe product's grade. Testing of final product and interpretation oftest results shall be conducted in accordance with National EnvironmentalLaboratory Accreditation Conference standards [SubchapterF of this chapter (relating to Analytical Quality Assurance and Quality Control)].
(c) Final product classification and usage. The finalsoil product shall be classified according to the following classification system.
(1) Grade 1 Soil. There are no restrictions on theuse of Grade 1 Soil. To be considered Grade 1 Soil, the final productshall meet all of the following criteria:
(A) shall contain no foreign matter of a size or shapethat can cause human or animal injury;
(B) shall not exceed all Maximum Allowable Concentrationsfor Grade 1 Soil in Table 1 of this subparagraph:
Figure: 30 TAC §330.615(c)(1)(B) (No change.)
(C) shall not contain foreign matter in quantitiesthat cumulatively are greater than 1.5% dry weight on a four millimeter screen;
(D) shall meet the requirements for pathogen reductionfor Grade 1 Soil as described in Table 2 of this subparagraph; and
Figure: 30 TAC §330.615(c)(1)(D) (No change.)
(E) shall meet the requirements for salinity and pHfor Grade 1 Soil as described in Table 2 of subparagraph (D) of this paragraph.
(2) Grade 2 Soil. To be considered Grade 2 Soil, thefinal product shall meet all of the following criteria:
(A) shall contain no foreign matter of a size or shapethat can cause human or animal injury;
(B) shall not exceed all Maximum Allowable Concentrationsfor Grade 2 Soil in Table 1 of paragraph (1)(B) of this subsection;
(C) shall not contain foreign matter in quantitiesthat cumulatively are greater than 1.5% dry weight on a four millimeter screen;
(D) shall meet the requirements for pathogen reductionfor Grade 2 Soil as described in Table 2 of paragraph (1)(D) of this subsection;
(E) shall meet the requirements for salinity and pHfor Grade 2 Soil as described in Table 2 of paragraph (1)(D) of thissubsection; and
(F) shall not be used at a residence, recreationalarea, or licensed child-care facility, or for food chain crops.
(3) Waste grade soil. Waste grade soil:
(A) exceeds any one of the Maximum Allowable Concentrationsfor Grade 2 final product in Table 1 of paragraph (1)(B) of this subsection;
(B) does not meet the other requirements of Grade 1or Grade 2 Soil; and
(C) shall be appropriately disposed at a permittedmunicipal solid waste facility.
The agency certifies that legal counselhas reviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402116
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER O. REGIONAL AND LOCAL SOLID WASTE MANAGEMENT PLANNING AND FINANCIAL ASSISTANCE GENERAL PROVISIONSStatutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.633.Definitions of Terms and Abbreviations.
The following words and terms, when used in this subchapter,have the following meanings, unless the context clearly indicates otherwise.
(1) Advisory council--The Municipal Solid Waste Managementand Resource Recovery Advisory Council.
(2) City--An incorporated city or town in the state.
(3) Closed municipal solid waste landfill unit--A discretearea of land or an excavation that has received only municipal solidwaste or municipal solid waste combined with other solid wastes, including,but not limited to, construction/demolition waste, commercial solidwaste, nonhazardous sludge, very small quantity generator [conditionally exempt small-quantity generator] hazardous waste,and industrial solid waste, and the area of land is not a land applicationunit, surface impoundment, injection well, or waste pile as thoseterms are defined by 40 Code of Federal Regulations §257.2.
(4) Council of governments--A regional planning commissioncreated under Local Government Code, Chapter 391.
(5) Governing body--The city council, commissionerscourt, board of directors, trustees, or similar body charged by lawwith governing a public agency.
(6) Inactive facility--A facility that no longer receivessolid waste.
(7) Planning fund--The municipal solid waste managementplanning fund created in the state treasury by the Comprehensive MunicipalSolid Waste Management, Resource Recovery, and Conservation Act (TexasHealth and Safety Code, Chapter 363).
(8) Planning period--The period of time that an adoptedsolid waste management plan is designed to remain effective.
(9) Planning region--A region of the state identifiedby the governor as an appropriate region for municipal solid waste planning.
(10) Private operator--A person, other than a governmentor governmental subdivision or agency, engaged in some aspect of operatinga solid waste management system. The term includes any entity otherthan a government or governmental subdivision or agency, owned andoperated by investment of private capital.
(11) Property--Land, structures, interests in land,air rights, water rights, and rights that accompany interests in land,structures, water rights, and air rights and includes easem*nts, rightsof way, uses, leases, incorporeal hereditaments, legal and equitableestates, interest, or rights such as terms for years and liens.
(12) Public agency--A city, county, district, or authoritycreated and operating under the Texas Constitution, Article III, §52(b)(1)or (2), or Article XVI, §59, or a combination of two or moreof these governmental entities acting under an interlocal agreementand having the authority under state laws to own and operate a solidwaste management system.
(13) Regional or local solid waste management plan--Aplan adopted by a council of governments or local government underauthority of the Municipal Solid Waste Management, Resource Recovery,and Conservation Act (Texas Health and Safety Code, Chapter 363).
(14) Regional Solid Waste Grants Program--The programestablished to utilize funds dedicated under Texas Health and SafetyCode, §361.014, for local and regional solid waste projects andto update and maintain regional solid waste management plans.
(15) Resolution--A resolution, order, ordinance, orother action of a governing body.
(16) Solid waste management--The systematic controlof any or all of the following activities:
(A) generation;
(B) source separation;
(C) collection;
(D) handling;
(E) storage;
(F) transportation;
(G) processing;
(H) treatment;
(I) resource recovery; or
(J) disposal of solid waste.
(17) Solid waste management system--Any plant, compostingprocess plant, incinerator, sanitary landfill, transfer station, orother works and equipment acquired, installed, or operated for thepurpose of collecting, handling, storing, processing, recovering materialor energy, or disposing of solid waste and includes sites for theseworks and equipment.
(18) Solid waste resource recovery system--Any realproperty, buildings, structures, plants, works, facilities, equipment,pipelines, machinery, vehicles, vessels, rolling stock, licenses,or franchises used or useful in connection with the processing ofsolid waste to extract, recover, reclaim, salvage, reduce, concentrate,or convert to energy or useful matter or resources, whatever theirform, including electricity, steam, or other forms of energy, andfertilizer, glass, or other forms of material and resources, fromsuch solid waste, and includes any real property, buildings, structures,plants, works, facilities, pipelines, machinery, vehicles, vessels,rolling stock, licenses, or franchises used or useful in:
(A) the transportation, receipt, storage, transfer,and handling of solid waste;
(B) the preparation, separation, or processing of solidwaste for reuse;
(C) the handling and transportation of recovered matter,resources, or energy; and
(D) the handling, transportation, and disposal of anynonrecoverable solid waste residue.
§330.635.Regional and Local Solid Waste Management Plan Requirements.
(a) Regional solid waste management plans. A regionalplan identifies the overriding concerns, goals, objectives, and recommendedactions for solid waste management over a long-range period for theentire planning region. The details to implement a regional plan areprovided in a Regional Solid Waste Management Implementation PlanGuideline that is approved by the executive director. A Regional SolidWaste Management Plan Implementation Guideline is a separate document.The requirements for the guidance document are found in §330.643of this title (relating to Regional and Local Solid Waste ManagementImplementation Plan Guideline Requirements).
(1) Geographic scope. The geographic scope of the regionalplanning process shall be the entire planning region designated bythe governor.
(2) Plan content. A regional plan shall be the resultof a planning process related to the proper management of solid wastein the planning region. The process shall include identification ofoverriding concerns and collection and evaluation of the data necessaryto provide a written public statement of goals and objectives andactions recommended to accomplish those goals and objectives. Theregional plan shall include:
(A) a statement of regional goals and objectives;
(B) a description and assessment of efforts to minimize,reuse, and recycle waste, as follows:
(i) include a brief description and an assessment ofcurrent efforts in the region to minimize municipal solid waste (MSW),including sludge, and efforts to reuse or recycle waste;
(ii) establish a recycling rate goal appropriate tothe region;
(iii) list any recommendations for encouraging andachieving a greater degree of waste minimization and waste reuse orrecycling in the geographic area covered by the plan;
(iv) include a description and assessment of existingor proposed community programs for the collection of household hazardous waste;
(v) recommend composting programs for yard waste andrelated organic wastes that may include:
(I) creation and use of community composting centers;
(II) adoption of the "Don't Bag It" program for lawnclippings developed by the Texas Agricultural Extension Service; and
(III) development and promotion of education programson home composting, community composting, and the separation of yardwaste for use as mulch; and
(vi) include a public education/outreach componentin the solid waste program; and
(C) a commitment to the following, regarding the managementof MSW facilities:
(i) encouraging cooperative efforts between local governmentsin the siting of landfills for the disposal of solid waste;
(ii) assessing the need for new waste disposal capacity;
(iii) considering the need to transport waste betweenmunicipalities, from a municipality to an area in the jurisdictionof a county, or between counties, particularly if a technically suitablesite for a landfill does not exist in a particular area;
(iv) allowing a local government to justify the needfor a landfill in its jurisdiction to dispose of the solid waste generatedin the jurisdiction of another local government that does not havea technically suitable site for a landfill in its jurisdiction;
(v) completing and maintaining an inventory of MSWlandfill units in accordance with Texas Health and Safety Code, §363.064(10) [§363.0635]. One copy of the inventory shallbe provided to the commission and to the chief planning official ofeach municipality and county in which a unit is located; and
(vi) developing a guidance document to review MSW registrationand permit applications to determine conformance with the goals andobjectives outlined in Volume II: Regional Solid Waste ManagementPlan Implementation Guidelines as referenced in §330.643 of this title.
(b) Local plans. A local plan addresses overridingshort and long-range concerns and actions related to solid waste managementwithin the jurisdiction of one or more local governments and may bedeveloped regardless of whether a regional plan has been developedthat will affect the local planning area. The details to implementa local plan are provided in a Regional Solid Waste Management ImplementationPlan Guideline that is approved by the executive director. A RegionalSolid Waste Management Plan Implementation Guideline is a separatedocument. The requirements for the guidance document are found in§330.643 of this title.
(1) Geographic scope. The geographic scope of the localplanning process shall be the jurisdiction of one or more local governmentswith common concerns or needs, but shall not include the entire planning region.
(2) Plan content. A local plan shall be the resultof a planning process that is related to the proper management ofsolid waste in the local planning area. The process shall includeidentification of concerns and collection and evaluation of the datanecessary to provide a written public statement of goals and objectivesand the actions recommended to accomplish those goals and objectives.The local plan shall include:
(A) a statement of local goals and objectives;
(B) a description and assessment of efforts to minimize,reuse, and recycle waste, as follows:
(i) include a brief description and an assessment ofcurrent efforts in the region to minimize MSW, including sludge, andefforts to reuse or recycle waste;
(ii) establish a recycling rate goal appropriate tothe region;
(iii) list any recommendations for encouraging andachieving a greater degree of waste minimization and waste reuse orrecycling in the geographic area covered by the plan;
(iv) include a description and assessment of existingor proposed community programs for the collection of household hazardous waste;
(v) recommend composting programs for yard waste andrelated organic wastes that may include:
(I) creation and use of community composting centers;
(II) adoption of the "Don't Bag It" program for lawnclippings developed by the Texas Agricultural Extension Service; and
(III) development and promotion of education programson home composting, community composting, and the separation of yardwaste for use as mulch; and
(vi) include a public education/outreach componentin the solid waste program; and
(C) commitment to the following, regarding the managementof MSW facilities:
(i) encouraging cooperative efforts between local governmentsin the siting of landfills for the disposal of solid waste;
(ii) assessing the need for new waste disposal capacity;
(iii) considering the need to transport waste betweenmunicipalities, from a municipality to an area in the jurisdictionof a county, or between counties, particularly if a technically suitablesite for a landfill does not exist in a particular area; and
(iv) allowing a local government to justify the needfor a landfill in its jurisdiction to dispose of the solid waste generatedin the jurisdiction of another local government that does not havea technically suitable site for a landfill in its jurisdiction.
(3) Special considerations or restrictions. The localplan shall not prohibit, in fact or by effect, importation or exportationof waste from one political jurisdiction to another.
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402117
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER T. USE OF LAND OVER CLOSED MUNICIPAL SOLID WASTE LANDFILLS30 TAC §§330.951, 330.953, 330.954, 330.959
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.951.Definitions.
Unless otherwise noted, all terms contained in this sectionare defined by their plain meaning. This section contains definitionsthat are applicable only to this subchapter and that supersede definitionsin §330.3 of this title (relating to Definitions) where thoseterms appear in this subchapter. As used in this subchapter, wordsin the singular include the plural and words in the plural includethe singular. The following words and terms, when used in this subchapter,have the following meanings.
(1) Alteration--Minor changes and standard redesignactivities common in residential and commercial structures, such asmoving walls and doors, that will not affect the foundation or increasethe horizontal extent of the foundation.
(2) Authorization--A written approval issued by theexecutive director that, by its conditions, may allow the disturbanceof the integrity of the final cover.
(3) Closed municipal solid waste landfill--A permittedor previously permitted municipal solid waste landfill, a municipalsolid waste landfill which has never been permitted, or a dumpingarea as defined in this section, which stopped receiving waste andcompleted the closure activities.
(4) Closure plan--A plan addressing the placement ofa final cap on a closed municipal solid waste landfill where wasteis exposed or the existing cap is inadequate.
(5) Construction--The inception of an activity thatprovides improvements necessary for the utilization of an enclosed structure.
(6) Develop and/or development--Any activity on orrelated to real property that is intended to lead to the constructionor alteration of an enclosed structure for the use and/or occupationof people for an industrial, commercial, or public purpose or to theconstruction of residences for three or more families, including subdivisionsthat will include single-family homes and duplexes.
(7) Development permit--A written permit issued bythe executive director that, by its conditions, may authorize a personor persons to develop an enclosed structure over a closed municipalsolid waste landfill unit. The development permit does not supersedelocal building and development permits, but is an additional permit.
(8) Dumping area--An non-permitted area of land oran excavation with unknown boundaries or which have had the boundariesdetermined through subsequent investigation that has received onlymunicipal solid waste or municipal solid waste combined with othersolid wastes, including but not limited to, construction/demolitionwaste, commercial solid waste, nonhazardous sludge, very smallquantity generator [conditionally exempt small-quantitygenerator] hazardous waste, and industrial solid waste, andthat is not a land treatment unit, surface impoundment, injectionwell, or waste pile as those terms are defined in 40 Code ofFederal Regulations §257.2. [§330.3 of this title(relating to Definitions).]
(9) Enclosed structure or structure--Any permanentstructure that is intended to be or has the potential of being usedor occupied by people for an industrial, commercial, public, or residential purpose.
(10) Essential improvements--All improvements and appurtenancesincluding, but not limited to, the excavations for the structure,installation of utilities, on-site wastewater disposal facilities,grading and drainage improvements, access drives and parking lots,foundation, security, fencing, landscape plantings, and irrigationsystems necessary for the utilization of an enclosed structure.
(11) Existing structure--Any enclosed structure thatbegan development prior to September 1, 1993.
(12) Permitted development--An enclosed structure orgroup of enclosed structures that have been issued a development permit.
(13) Post-closure care--The period of time beginningwith the professional engineer certification of completing final closureactivities as accepted by the executive director in accordance with§§330.453(f), 330.455(c), or 330.457(f)(5) of this title(relating to Closure and Post-Closure) and ending with the professionalengineer certification of completion of post-closure care maintenanceas accepted by the executive director in accordance with §330.463of this title (relating to Post-Closure Care Requirements). Monitoringand maintenance activities are required during the post-closure careperiod in accordance with §330.463 of this title.
(14) Post-closure care landfills--A municipal solidwaste landfill facility that has received a municipal solid wastepermit under §330.7 of this title (relating to Permit Required)and is currently in the post-closure care period as defined in this section.
(15) Registration--A document issued by the executivedirector regarding submitted information for an existing enclosedstructure built over a closed municipal solid waste landfill unitthat does not require a development permit.
(16) Site operating plan--A prepared document thatprovides guidance for operations and procedures necessary to maintainhuman safety and environmental protection at the development, permitteddevelopment, or existing structure in a manner consistent with thedevelopment permit and the commission's regulations.
(17) Structures gas monitoring plan--A document preparedby a licensed professional engineer that provides procedures to ensurethe detection of landfill gases and the prevention of migration oflandfill gases into enclosed structures.
§330.953.Soil Test Required before Development.
(a) A person may not undertake the development of atract of land that is greater than one acre in area unless the personconducts a soil test prior to or during development and construction.The soil test is intended to determine if a landfill exists on theproperty planned for development.
(b) A soil test under this section shall be conductedby a licensed professional engineer.
(c) The licensed professional engineer must chooseone of the following tests.
(1) Test I. The licensed engineer shall observe allsubsurface disturbances, undertaken for whatever reason, during developmentthrough the completion of the foundation. A subsurface investigationprior to construction is not required by Test I.
(2) Test II. A subsurface investigation undertakenfor the purpose of finding a closed municipal solid waste landfillunit. The investigation must incorporate a sufficient number of boringsor excavations, the number of which shall be determined on a site-specificbasis by the licensed professional engineer. Each boring or excavationshall be to a minimum depth of ten feet.
(3) Test III. A subsurface investigation conductedat the development site for geotechnical or environmental purposes,or a housing and urban development test for a homeowner's warranty.
(d) In accordance with Texas Health and Safety Code,§361.538(c), any engineer who conducts a soil test and determinesthat part of the tract overlies a closed municipal solid waste landfillshall notify the following persons of that determination within 30days of the completion of the test:
(1) each owner and each lessee of the tract;
(2) the executive director;
(3) local government officials with the authority todisapprove the application for development; and
(4) the regional council of governments.
(e) The responsible engineer shall affix his seal,signature, and date of execution to the soil test results as requiredby the Texas Engineering Practice Act, §15c, and in accordancewith 22 TAC §137.33 (relating to Sealing Procedures) [22 TAC §131.166 (relating to Engineer's Seal)].
(f) All soil test excavations where waste is removedshall be backfilled and compacted with clean high-plasticity or low-plasticityclay. The excavation shall be backfilled to exceed the existing gradeand provide positive drainage.
§330.954.Development Permit, DevelopmentAuthorization, and Registration Requirements, Procedures, and Processing.
(a) Permit required for development over a closed municipalsolid waste (MSW) landfill unit.
(1) No person may commence or continue physical constructionof an enclosed structure over a closed MSW landfill as defined in§330.951 of this title (relating to Definitions) without firstsubmitting a development permit application in accordance with §330.956of this title (relating to Application for Proposed or Existing ConstructionsOver a Closed Municipal Solid Waste Landfill Unit, General Requirements)and receiving a development permit issued by the executive director,except as noted in paragraph (7) of this subsection. The permit issuedby the executive director under this subchapter is a development permitand not a permit for the management of solid waste. A permit applicationfor a development permit shall comply with those requirements in thissubchapter. A permit application to manage MSW shall comply with theapplicable sections of Chapter 281 and Chapter 305 of this title (relatingto Applications Processing and Consolidated Permits), and SubchaptersA - M of this chapter.
(2) A development permit is required for constructionof an enclosed structure over a closed MSW landfill that had receiveda permit under §330.7 of this title (relating to Permit Required)and had its permit revoked at the end of the post-closure care periodin accordance with §305.67 of this title (relating to Revocationand Suspension upon Request or Consent) or for construction of anenclosed structure over a non-permitted closed MSW landfill. The exactwaste boundary may be determined through soil boring tests in accordancewith §330.953 of this title (relating to Soil Test Required beforeDevelopment), or through alternative investigation methods approvedby the executive director.
(3) A development permit for construction of an enclosedstructure is required for an entire property that includes a closedMSW landfill with unknown boundaries as defined in §330.951 ofthis title.
(4) The permit application under this subchapter mustbe received at least 45 days prior to the proposed commencement ofconstruction over the closed MSW landfill unit.
(5) If a person directs an engineer to conduct SoilTest I, and the soil test reveals the existence of a closed MSW landfillunit after the commencement of construction, construction of the enclosedstructure being built over the waste area shall cease immediately,and a permit application shall be submitted and a development permitissued before construction of the enclosed structure over the wastearea unit can resume. The person may proceed with construction anddevelopment of other facilities, including those items listed in thedefinition of essential improvements.
(6) If a person directs an engineer to conduct eitherSoil Test II or Soil Test III and the engineer discovers a closedMSW landfill unit as a result of the test, the person shall submita permit application. Development of an enclosed structure over theclosed landfill unit cannot begin until a development permit is issued.
(7) If a person directs an engineer to conduct eitherSoil Test II or Soil Test III and the engineer does not detect a closedMSW landfill unit as a result of the test, but subsequently discoversa closed MSW landfill unit during the development, the person is notrequired to submit a permit application but must meet the provisionsof §330.959 of this title (relating to Contents of RegistrationApplication for an Existing Structure Built Over a Closed MunicipalSolid Waste Landfill Unit).
(8) As part of the application, the owner shall providethe name and physical and mailing addresses of a public building withnormal operating hours such as library, city hall, or county courthousewhere the application can be viewed by the general public. The facilitieswhere the permit can be viewed shall be in compliance with all applicablerequirements of the Americans with Disabilities Act. The applicationshall also include an adjacent landowner list.
(b) Review and approval of permit application.
(1) Notice of the opportunity to request a public meetingfor an application shall be provided not later than 45 days of theexecutive director's receipt of the application in accordance withthe procedures contained in §39.501(c) of this title (relatingto Application for Municipal Solid Waste Permit). The owner or operatorand the commission shall hold a public meeting in the local area,prior to facility authorization, if a public meeting is required basedon the criteria contained in §55.154(c) of this title (relatingto Public Meetings). This section does not require the commissionto respond to comments, and it does not create an opportunity fora contested case hearing. The purpose of the public meeting is forthe public to provide input for consideration by the commission, andfor the applicant and commission staff to provide information to the public.
(2) The commission shall notify the owner by mail ofthe date and time of the meeting.
(3) The commission shall require the applicant to publishnotice of the meeting in a newspaper that is generally circulatedin each county in which the property proposed for development is located.The published notice must appear at least once a week for the twoweeks before the date of the meeting. The commission shall also notifyall individuals on the list of adjacent landowners at least 15 daysprior to the meeting. The notice shall list the location, date, andtime of the public meeting, and the location of the public buildingwhere the development permit application can be viewed.
(4) The executive director's staff will conduct thepublic meeting at the designated location. The owner will make a presentationof the application, the executive director's staff will describe thedevelopment permit, and public comment will be received. The publicmeeting is not an evidentiary proceeding.
(5) On or before the fifth day following the public meeting:
(A) the executive director will either approve or denythe development permit application. The executive director shall basethe decision on whether the application meets each of the requirementsof §330.956 of this title and §330.957 of this title (relatingto Contents of the Development Permit and Workplan Application). Adecision denying the permit shall state the deficiencies that werecause for the denial and any modifications necessary to correct thosedeficiencies; and
(B) a person may submit in writing to the chief clerka request to be notified of the executive director's decision on the application.
(6) The date on which the executive director issuesthe order shall be construed as the date on which notice of the decisionis mailed to the owner and to each person that requested notificationof the executive director's decision in accordance with paragraph(5)(B) of this subsection.
(7) Petition for review of executive director's decision.
(A) The owner or a person may file a petition for reviewnot later than the tenth day after the date the executive directorissues the order. The owner or person that files a petition shallfile the petition with the chief clerk, and shall mail a copy of thepetition to the owner and to each person that requested notificationof the executive director's decision in accordance with paragraph(5)(B) of this subsection.
(B) If a petition for review is filed, the commissionshall act on the petition for review within 35 days after issuanceof the executive director's order or at the next scheduled commissionmeeting, whichever is later. The commission may affirm or reversethe order issued by the executive director.
(C) A commission order ruling on a petition for reviewis final and effective on the date issued.
(8) If no petition for review is filed ten days afterthe executive director issues a decision, the decision is final andeffective on the 11th day after the date the decision was issued.
(9) If the actual cost of reviewing the permit is notequal to the application fee, the owner will be presented with eithera refund or an invoice in accordance with subsection (a)(7) of thissection. If an invoice is submitted, a development permit will notbe issued until the invoice is paid.
(10) An owner who is denied a development permit maysubmit a new application to the executive director.
(c) Requirements for development over a closed MSWlandfill in post-closure care.
(1) For an MSW landfill that is covered by an existingpermit for the management of solid waste received under §330.7of this title and is currently in post-closure care, no person maycommence physical construction of an enclosed structure without submittinga permit modification application for the closure plan and post-closureplan of the existing permit in accordance with §305.70(k)(12) [§305.70(j)(6)] of this title (relating to Municipal SolidWaste Permit and Registration Modifications), or a permit amendmentapplication in accordance with §305.62 of this title (relatingto Amendment), and a workplan including those items listed in §330.957of this title, and receiving the approval from the executive director.
(2) For an MSW landfill that is covered by an existingpermit for the management of solid waste received under §330.7of this title and is currently in post-closure care, no person maycommence with any type of non-enclosed structures, which will resultin the disturbance, in any way, of the final cover without submittinga permit modification application for the closure plan and post-closureplan of the existing permit in accordance with §305.70(k)(12) [§305.70(j)(6)] of this title or a permit amendment applicationin accordance with §305.62 of this title, and a workplan includingthose items listed in §330.960 of this title (relating to Contentsof Authorization Request to Disturb Final Cover Over a Closed MunicipalSolid Waste Landfill for Non-enclosed Structures), and receiving theapproval from the executive director.
(3) The executive director shall issue a decision toapprove or deny the permit modification/amendment application. Theexecutive director shall base the decision on whether the applicationmeets each of the requirements of §305.70(k)(12) [§305.70(j)(6)] or §305.62 of this title, respectively, and of §330.957or §330.960 of this title, respectively. A decision denying thepermit modification/amendment shall state the deficiencies that werecause for the denial and any modifications necessary to correct those deficiencies.
(d) Registration for existing structures.
(1) The owner or lessee of an existing structure thatexisted or began development prior to September 1, 1993, and is builtover a closed MSW landfill unit, shall submit a registration applicationto the executive director. The registration application shall be submittedto the executive director and shall include those items listed in§330.959 of this title. This paragraph is not intended to requirethat owners and lessees of enclosed structures initiate investigationsfor closed MSW landfills.
(2) A registration issued by the executive directorunder this subchapter is not a registration for the management ofsolid waste. A registration application for an existing structureshall comply with those requirements in this subchapter. A registrationapplication to manage MSW shall comply with the applicable sectionsof Chapter 281 and Chapter 305 of this title and Subchapters A - Mof this chapter.
(3) The owner shall submit the registration within180 days from the determination that the structure overlies a closedMSW landfill.
(4) Upon receipt of written approval of the structuresgas monitoring plan or approval with modifications to the plan fromthe executive director, the owner or lessee of the existing structureshall implement the plan in accordance with its approved schedule.
(e) Authorization to disturb final cover for non-enclosed structures.
(1) The integrity of the final cover of a closed MSWlandfill shall not knowingly be violated, disturbed, altered, removed,or interrupted in any way without the prior authorization of the executivedirector, except where soil tests are being performed in accordancewith §330.953 of this title.
(2) Penetrations of the final cover or liner systemswill not be allowed without the prior authorization of the executivedirector. These include, but are not limited to, borings, piers, spreadfootings, foundations for light standards, fence posts, anchors, deadmananchors, manholes, on-site disposal systems, recreational facilities,and any other kind of non-enclosed structures.
(3) An authorization to disturb final cover issuedby the executive director under this subchapter is not an authorizationfor the management of solid waste. An application for authorizationshall comply with those requirements in this subchapter.
(4) The authorization request must be received at least45 days prior to the proposed commencement of construction over theclosed MSW landfill unit.
§330.959.Contents of Registration Applicationfor an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit.
(a) The application shall follow the general requirementsas set forth in §330.956 of this title (relating to Applicationfor Proposed or Existing Constructions Over a Closed Municipal SolidWaste Landfill Unit, General Requirements).
(b) The registration application shall consist of the following:
(1) a legal description as set forth in §330.957(h) [§330.957(e)] of this title (relating to Contentsof the Development Permit and Workplan Application);
(2) certified copies of all notices having been madeby the owner and the lessor/lessee in accordance with §330.962of this title (relating to Notice to Real Property Records), §330.963of this title (relating to Notice to Buyers, Lessees, and Occupants),and §330.964 of this title (relating to Lease Restrictions);
(3) plans and drawings as set forth in §330.957(i),(j), and (n)(3) of this title;
(4) a site operating plan as set forth in §330.957(s)of this title;
(5) a structures gas monitoring plan:
(A) General.
(i) The owner or lessee of an existing structure builtover a closed municipal solid waste landfill unit shall ensure thatthe concentration of methane gas generated by the landfill does notexceed 20% of the lower explosive limit for methane (1.0% by volumemethane in air) in facility structures (excluding gas control or recoverysystem components). Any enclosed structures shall contain automaticmethane gas sensors approved by the executive director and designedto trigger an audible alarm if the volumetric concentration of methanein the air is greater than 1.0%.
(ii) Landfill gas monitoring requirements for a registrationunder this section may be suspended by the executive director as providedfor in §330.957(t)(1)(B) of this title.
(B) Requirements for structures gas monitoring plan.The owner or lessee shall submit a structures gas monitoring plan,designed by a licensed professional engineer, to the executive directorfor review and approval. The plan shall ensure detection of the presenceof landfill gas entering on-site structures. All design drawings shouldbear the licensed engineer's seal and signature. The plan shall include,but not be limited to, the following:
(i) an analysis of specific facility characteristicsand potential migration pathways or barriers as set forth in §330.957(t)(2)(A)of this title;
(ii) a facility drawing, drawn to scale, which indicatesthe location of all waste disposal areas, existing structures, creeks,and ponds;
(iii) a narrative describing modifications to the existingstructures including, but not limited to, the following:
(I) structural;
(II) electrical;
(III) mechanical; and
(IV) landfill gas monitoring equipment including manufacturer'sspecification sheets and any gas ventilation or active gas extractionsystems if the development utilizes such systems;
(iv) a detailed implementation schedule for the installationof landfill gas monitoring equipment;
(v) a sampling and analysis plan as set forth in §330.957(t)(2)(F)of this title; and
(vi) a landfill gas analysis as set forth in §330.957(t)(2)(G)of this title; and
(6) a safety and evacuation plan describing evacuationprocedures and safety measures in the event the methane gas sensorssound the audible alarms.
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402118
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER U. STANDARD AIR PERMITS FOR MUNICIPAL SOLID WASTE LANDFILL FACILITIES AND TRANSFER STATIONS30 TAC §§330.987, 330.991, 330.993, 330.995
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; and THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act. The standard air permit is also adopted under THSC,§382.002, which establishes the policy of the state and the purposeof the chapter to safeguard the state's air resources from pollution;§382.011, which gives the commission the powers necessary orconvenient to carry out its responsibilities under the TCAA; THSC,§382.017, which authorizes the commission to adopt rules; THSC,§382.051, which authorizes the commission to issue a permit toconstruct or modify a facility that may emit air contaminants, includinga standard permit for similar sources; and THSC, §382.05195,which authorizes the commission to issue standard permits and to adoptrules as necessary to implement standard permits.
The proposed amendments implement House Bill 3060, 88th Texas Legislature, 2023.
§330.987.Certification Requirements.
(a) Type IV landfills are exempt from the requirementsof this subsection.
(b) Certification under this subchapter constitutesan acknowledgment and agreement that the permit holder will complywith all rules, regulations, and orders of the commission issued inconformity with Texas Clean Air Act, Texas Health and Safety Code,Chapter 382, and the conditions precedent to the claiming of thisstandard permit. If more than one state or federal rule or regulationor permit condition are applicable, the most stringent limit or conditionwill govern. Acceptance includes consent to the entrance of commissionemployees and designated representatives of any local air pollutioncontrol agency having jurisdiction over the site into the permittedpremises at reasonable times to investigate conditions relating tothe emission or concentration of air contaminants, including compliancewith the standard permit.
(c) A certification under this subchapter is validfor a term not to exceed ten years from the date of receipt by theTexas Commission on Environmental Quality. An owner and/or operatoris required to renew a certification by no later than the expirationdate of the certification. The commission will provide written noticeto operators of the renewal deadline at least 180 days prior to theexpiration of the certification.
(d) Two copies of the certification must be submittedto the Waste Permits Division. One copy must be submitted to the appropriateregional office, and one copy must be sent to any appropriate localair pollution control program having jurisdiction over the site. Thecertification must be based on the capacity of the landfill minimumof a ten-year period. The certification must include supporting documentationto demonstrate compliance with the conditions of this subchapter andany other applicable federal and state requirements, and at a minimumshould include the following:
(1) the basis and quantification of emission estimates;
(2) sufficient information to demonstrate that theproject will comply with all applicable conditions of this subchapter; and
(3) a description of any equipment and related processes.
(e) Certifications must be submitted as follows.
[(1) Owners or operators of existingmunicipal solid waste landfill sites that have been modified and donot continue to meet the existing standard permit under §116.621of this title (relating to Municipal Solid Waste Landfills) must certify.]
(1) [(2)] Owners or operatorsmust submit a certification for the initial construction of a municipalsolid waste landfill under this subchapter at least 120 days priorto building or installation of any equipment or structure that mayemit air contaminants.
(2) [(3)] Modifications to anexisting municipal solid waste landfill site that results in a changein categories as listed in §330.983 of this title (relating toDefinitions) must submit a certification at least 60 days after changesoccurring at the site.
(f) New facilities or changes to existing facilitiesthat do not cause a site to become ineligible for this standard permitcan be authorized by meeting one of the following:
(1) independently claiming the permit by rule underChapter 106 of this title (relating to Permits by Rule) or a standardpermit under Chapter 116, Subchapter F of this title (relating toStandard Permits), including all registrations, fees, and documentation.These independent registrations must be administratively incorporatedat the next standard permit certification renewal or modification; or
(2) including the claimed permit by rule or standardpermit as a part of an initial or modified certification. A claimedpermit by rule or standard permit included under a municipal solidwaste landfill standard permit certification is exempt from the registrationand fee requirements normally required of permits by rule or standardpermits. The certification must include sufficient information necessaryto demonstrate qualification for those authorizations. Certificationsmust meet the following:
(A) update the site certification within one year ofconstructing new facilities or modifications if the cumulative amountof emissions resulting from the new facilities or modifications is:
(i) less than five tons per year of any criteria aircontaminant for sites located in a designated nonattainment area; or
(ii) less than 25 tons per year of any criteria aircontaminant for sites located in an attainment area;
(B) update the site certification within 30 days ofconstructing new facilities or modifications if the site is not consideredan existing major source in accordance with prevention of significantdeterioration review or nonattainment new source review, and the cumulativeamount of emissions for these changes is:
(i) greater than or equal to five tons per year ofany criteria air contaminant for sites located in a designated nonattainmentarea; or
(ii) greater than or equal to 25 tons per year of anycriteria air contaminant for sites located in attainment areas; or
(C) update the site certification at least 30 daysprior to the change, including any applicable major source nettingdemonstration as specified in §116.150 of this title (relatingto New Major Source or Major Modification in Ozone Nonattainment Areas),if the site is considered an existing major site in accordance withprevention of significant deterioration review or nonattainment newsource review, and the cumulative amount of emissions for changes is:
(i) greater than or equal to five tons per year ofany criteria air contaminant for sites located in a designated nonattainment area; or
(ii) greater than or equal to 25 tons per year of anycriteria air contaminant for sites located in an attainment area.
§330.991.Technical and Operational Requirementsfor all Municipal Solid Waste Landfill Sites.
(a) Air emissions from the following stationary sourcesare authorized by this standard permit:
(1) recycling (e.g., crushing glass, shredding or crushingaluminum, light bulb crushing, wood chipping, or mulching);
(2) transfer stations:
(A) located at a municipal solid waste (MSW) landfillsite; or
(B) not located at a landfill and store over 1,000tons of MSW overnight, defined as sunset to sunrise, must have thewaste holding area covered by a ventilated building that has a minimum16-foot vertical exhaust of 45,000 cubic feet per minute or greater;
(3) waste solidification/stabilization operations,which must be conducted with the following conditions:
(A) when dry fine powdery materials, including, butnot limited to, fly ash, cement kiln dust, hydrated lime, and finesawdust are used for mixing in the waste solidification/stabilizationprocess loading/unloading, transporting, and mixing, they must becontrolled so as to minimize particular matter emissions. Controlsto minimize particular matter emissions may include loading and storingin enclosed containers, or mixing and unloading under conditions wherethe materials cannot become airborne; and
(B) no site-generated visible emissions may cross theproperty line for a period not to exceed 30 seconds in any six-minuteperiod, as determined by United States Environmental Protection Agency(EPA) Test Method 22;
(4) landfill cell construction, operation, and closures,including landfill gas emissions and associated capture and control equipment;
(5) landfill mist spray systems to control odor. Theselandfill mist spray systems will operate such that no visible emissionsmay cross the property line for a period not to exceed 30 secondsin any six-minute period, as determined by EPA Test Method 22;
(6) any other facility or group of facilities thatmeets a permit by rule under Chapter 106 of this title (relating toPermits by Rule) or a standard permit under Chapter 116, SubchapterF of this title (relating to Standard Permits) with the exceptionof activities listed in §330.985(d)(2) of this title (relatingto Applicability and Exceptions);
(7) leachate and landfill gas condensate activities,which must be conducted as follows:
(A) leachate and/or landfill gas condensate may berecirculated on-site at a rate not to exceed 100,000 gallons per day,and in accordance with the conditions and limitations specified in§330.177 of this title (relating to Leachate and Gas CondensateRecirculation); and
(B) air emissions are authorized from leachate and/orlandfill gas condensate stored in tanks or disposed in evaporationponds that are lined in accordance with §330.331(b) of this title(relating to Design Criteria), and meet the requirements in §330.17of this title (relating to Technical Guidelines);
(8) fuel storage tanks, which must meet the following requirements:
(A) storage and transfer of gasoline, diesel fuel,or kerosene are authorized by this standard permit;
(B) permanent gasoline tanks must be located at least500 feet from any off-property receptor;
(C) total annual throughput of gasoline for all tanksmay not exceed 20,000 gallons per year unless a vapor balance systemas defined in §115.10 of this title (relating to Definitions),is used; and
(D) records of annual throughput must be maintained;
(9) tire shredding, which may be conducted at a ratenot to exceed 11 tons per hour. Records of the amount of tires shreddedper hour must be maintained;
(10) bioremediation pads, which must be operated suchthat the pad must be located at least 165 feet from any off-property receptor;
(11) the GCCS, which must be designed to route totalcollected landfill gas to one of the following control devices:
(A) flares that satisfy requirements and are operatedin accordance with 40 CFR Part 60, Subpart WWW, as applicable;
(B) a landfill gas-fired stationary, reciprocatinginternal combustion engine or a landfill gas-fired turbine not usedto generate electricity, that satisfies all of the requirements of§106.4(a)(1) of this title (relating to Requirements for Permittingby Rule) and §106.512 of this title (relating to Stationary Enginesand Turbines);
(C) a landfill gas-fired stationary electric generatingunit that satisfies all of the requirements of Chapter 116, SubchapterF of this title;
(D) a landfill gas-fired boiler, heater, or other combustionunit, not including stationary, reciprocating internal combustionengines or turbines, that satisfies the maximum heat input and nitrousoxide requirements of §106.4(a)(1) of this title and §106.183of this title (relating to Boilers, Heaters, and Other CombustionDevices) and applicable sections of Chapter 117 of this title (relatingto Control of Air Pollution from Nitrogen Compounds);
(E) a pollution control project that satisfies allthe requirements of §116.617 of this title (relating toState Pollution Control Project Standard Permit) [(relatingto Standard Permits for Pollution Control Projects)]. Any facilityor process added under this subsection is not considered a new productionfacility for the purposes of §116.617 of this title; or
(F) a gas treatment system that processes the collectedgas to produce a product or by-product for subsequent sale or use.All emissions from any atmospheric vent from the gas treatment systemmust be subject to the requirements of 40 CFR §60.752(b)(2)(iii)(A)or (B); and
(12) a temporary rock crusher that is used exclusivelyfor cell construction that satisfies all the requirements of the AirQuality Standard Permit for Temporary Rock Crushers.
(b) If sampling of stacks and/or process vents arerequired, the owner or operator must contact the appropriate regionaloffice and any other air pollution control program having jurisdictionover the site prior to sampling to obtain the proper data forms andprocedures. All sampling and testing procedures must be approved bythe executive director and coordinated with the regional representativesof the commission. The owner or operator is also responsible for providingsampling facilities and conducting the sampling operations or contractingwith an independent sampling consultant.
(c) The facilities covered by this standard permitmay not be operated unless all air pollution emission capture andabatement equipment is maintained in good working order and operatingproperly during normal facility operations. Notification for emissionsevents and unscheduled maintenance must be made in accordance with§101.201 of this title (relating to Emissions Event Reportingand Recordkeeping Requirements) and §101.211 of this title (relatingto Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).
(d) Owners and/or operators must monitor and controlparticulate matter as follows.
(1) All operations must be conducted in a manner soas to minimize any particulate matter emissions at the landfill boundary.No site-generated visible emissions, as determined by EPA Test Method22, may not cross the property line for a period exceeding 30 secondsin any six-minute period.
(2) Roads and other areas subject to vehicle trafficmust be kept clean of debris and either be watered, treated with dust-suppressantchemicals, or paved with a cohesive hard surface that is maintainedintact and cleaned as necessary.
(3) All excavated areas must be watered or treatedwith dust-suppressant chemicals as necessary to control particulatematter emissions.
(e) Tire shredding, outdoor dry abrasive blasting,the operation of a temporary rock crusher used exclusively for cellconstruction, or waste solidification/stabilization when fine materialsare used in the process, must not occur simultaneously (no two ormore processes can occur at the same time).
(f) An MSW landfill cell that contains Class 1 industrialnonhazardous waste greater than 20% by weight or volume must havea GCCS associated with the location of the Class 1 waste, and thatGCCS is subject to the provisions of §330.995 of this title (relatingto Recordkeeping and Reporting Requirements for all Municipal SolidWaste Landfill Sites).
§330.993.Additional Requirements for Ownersor Operators of Category 3 Municipal Solid Waste Landfills.
(a) The owner and/or operator must comply with theapplicable provisions as specified in 40 Code of Federal Regulations§§60.752 - 60.759 and 40 Code of Federal Regulations Part63, Subparts A and AAAA. The landfill gas collection and control systemmay be capped or removed provided that the following are met:
(1) the municipal solid waste landfill is permanentlyclosed in accordance with Subchapter K of this chapter (relating toClosure and Post-Closure); and
(2) the conditions of 40 Code of Federal Regulations §60.752(b)(2)(v) [§60.752(2)(b)(v)] aremet, and a closure report has been submitted to the Texas Commissionon Environmental Quality's Air Permits Division in accordance with40 Code of Federal Regulations §60.757(d).
(b) Methane concentration at the surface of the municipalsolid waste landfill must be monitored quarterly, as specified in40 Code of Federal Regulations §60.755(c).
(c) The gas collection and control system must be monitoredin accordance with the provisions specified in 40 Code of FederalRegulations §60.756.
§330.995.Recordkeeping and Reporting Requirements for all Municipal Solid Waste Landfill Sites.
(a) A copy of this subchapter along with any claimedpermit by rule, the applicable general conditions of Chapter 106,Subchapter A of this title (relating to General Requirements), andany claimed standard permits must be kept at the site.
(b) The operator will keep records for any permit byrule or standard permit claimed containing sufficient informationto demonstrate compliance with Chapter 106, Subchapter A of this titleand all applicable permit by rule or standard permit conditions. Thisinformation must include, but is not limited to, production recordsand operating hours.
(c) The owner or operator will maintain additionalrecords specified in 40 Code of Federal Regulations (CFR) Part 60,Subpart WWW or 40 CFR 63, Subpart AAAA, if applicable, including:
(1) an initial design capacity report required by 40CFR §60.757(a)(2), or an amended design capacity report requiredby 40 CFR §60.757(a)(3);
(2) records of the non-methane organic compound emissionrates, determined annually using the procedures specified in 40 CFR§60.754(a)(1), or every five years using the procedures of 40CFR §60.757(b)(1)(ii), as applicable, and submit the non-methaneorganic compound emissions rate report within 90 days of exceeding2.5 million megagrams and 2.5 million cubic meters and annually thereafter,or every five years in accordance with 40 CFR §60.757(b); and
(3) all records in accordance with the provisions of40 CFR §60.758, Recordkeeping Requirements.
(d) A semiannual compliance report must be submittedto the Texas Commission on Environmental Quality's Office of Complianceand Enforcement, in accordance with the provisions of 40 CFR §63.1981 [§63.1980].
(e) Records must be maintained at the site and madeavailable at the request of representatives of the executive director,the United States Environmental Protection Agency, or any local airpollution control program having jurisdiction over the site.
(f) Records must be retained for at least 60 months.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402119
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
CHAPTER 335. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTEThe Texas Commission on Environmental Quality (TCEQ, agency,or commission) proposes the amendment to §§335.1, 335.206,335.325, and 335.329.
Background and Summary of the Factual Basis for the Proposed Rules
Promulgation of House Bill 3060
The commission proposes this rulemaking to implement House Bill(HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Healthand Safety Code (THSC), §361.003 (Definitions), §361.041(Treatment of Post-Use Polymers and Recoverable Feedstocks as SolidWaste), and §361.119 (Regulation of Certain Facilities as SolidWaste Facilities). These statutory enactments expanded the existingconditional exclusion from the definition of solid waste and regulationsapplicable to owners and operators of facilities that convert plasticsand certain other nonhazardous recyclable material through pyrolysisand gasification to include the processes of depolymerization andsolvolysis. The conditional exclusion is dependent upon two conditionsbeing satisfied: (1) an advanced recycling facility owner or operatormust demonstrate that the primary function of the facility is to convertmaterials into products for subsequent beneficial use; and (2) thatall solid waste generated from converting the materials is disposedof at a solid waste management facility authorized by the commission.The commission's proposed implementation of HB 3060 in Chapter 335would only be applicable to material that would be classified as nonhazardousindustrial solid waste if discarded. Implementation of provisionsenacted by HB 3060 applicable to material that would be classifiedas municipal solid waste if discarded is proposed in Chapter 330 (MunicipalSolid Waste).
Rule Citation Corrections
In addition to HB 3060 implementation, this rulemaking would makeminor and non-substantive updates to incorrect rule citations or references.
As part of this rulemaking, the commission is also proposing revisionsto 30 Texas Administrative Code (TAC) Chapter 281 (Applications Processing);Chapter 328 (Waste Minimization and Recycling); and Chapter 330 (MunicipalSolid Waste), concurrently in this issue of the Texas Register.
Section by Section Discussion
§335.1, Definitions
The commission proposes to amend §335.1 to add three new definitionsas paragraphs in alphabetical order, remove two definition paragraphs,and renumber the subsequent definition paragraphs accordingly to accountfor these amendments.
The commission proposes §335.1(8) to add the definition of"Advanced recycling facility." This amendment would implement HB 3060by adding the definition of "Advanced recycling facility" to implementthe new definition of "Advanced recycling facility" in THSC, §361.003.
The commission proposes §335.1(50) to add the definition of"Depolymerization." This amendment would implement HB 3060 by addingthe definition of "Depolymerization" to implement the new definitionof "Depolymerization" in THSC, §361.003.
The commission proposes to amend renumbered §335.1(76) torevise the definition of "Gasification" to implement the amended definitionof "Gasification" in THSC, §361.003, as amended by HB 3060. Thedefinition of "Gasification" in §361.003 was amended to removecrude oil, diesel, gasoline, diesel blend stock, gasoline blend stock,home heating oil, ethanol, or other fuels from the list of valuableraw materials, valuable intermediate products, and valuable finalproducts that the process of gasification may convert recoverablefeedstocks into.
The commission proposes to delete existing §335.1(75) to removethe definition of "Gasification facility." This amendment would implementHB 3060 which removed the definition of "Gasification facility" fromTHSC, §361.003.
The commission proposes to amend renumbered §335.1(89)(B),the definition of "Incinerator," by removing "Gasification facility"and "Pyrolysis facility" and establishing that incinerators are notan "Advanced recycling facility" managing "Recoverable feedstock."These amendments would also implement the new definition of "Advancedrecycling facility" and the removal of the definitions of "Gasificationfacility" and "Pyrolysis facility" from THSC, §361.003 as enactedby HB 3060.
The commission proposes to amend renumbered §335.1(137) torevise the definition of "Post-use polymers" to implement the definitionof "Post-use polymers" in THSC, §361.003, as amended by HB 3060,and clarify that post-use polymers would be classified as nonhazardouswaste if discarded. HB 3060 amended the definition of "Post-use polymers"in §361.003 by: replacing the term plastic polymers with theterm plastics; adding agricultural, preconsumer recovered materialsand postconsumer materials to the sources of plastics that post-usepolymers may be derived from; removing a list of wastes, medical waste,electronic waste, tires, and construction or demolition debris, thatwhen mixed with used polymers would not meet the definition of post-usepolymers; identifying that post-use polymers are sorted from solidwaste and other regulated waste and may contain residual amounts oforganic material; specifying that plastics mixed with solid wasteor hazardous waste onsite or during processing at an advanced recyclingfacility do not meet the definition of post-use polymers; identifyingthat post-use polymers are used or intended for use as a feedstockor for the production of feedstocks, raw materials, intermediate productsor final products using advanced recycling; and adding that post-usepolymers are processed or held prior to processing at an advancedrecycling facility.
The commission proposes to amend renumbered §335.1(143) torevise the definition of "Pyrolysis" to implement the definition of"Pyrolysis" in THSC, §361.003, as amended by HB 3060. The definitionof "Pyrolysis" in §361.003 was amended to clarify which materialsare included and excluded from the list of valuable raw materials,valuable intermediate products, and valuable final products that theprocess of pyrolysis converts post-use polymers into. The amendeddefinition clarified this list by adding the term "polymers," andby removing a comma between the terms "plastic" and "monomer" whichomitted "plastic" from the list; and by removing "crude oil, diesel,gasoline, diesel and gasoline blendstock, home heating oil, ethanol,or another fuel" from the list.
The commission proposes to delete existing §335.1(143) toremove the definition of "Pyrolysis facility." This amendment wouldimplement HB 3060 which removed the definition of "Pyrolysis facility"from THSC, §361.003.
The commission proposes to amend §335.1(146) to revise thedefinition of "Recoverable feedstock" to implement the definitionof "Recoverable feedstock" in THSC, §361.003, as amended by HB3060. The definition of "Recoverable feedstock" in §361.003 wasamended to clarify that recoverable feedstock may be processed tobe used as feedstock in an advanced recycling facility or throughgasification by removing the term gasification facility, excludingmaterials and post-industrial wastes containing post-use polymersthat have been processed into a fuel, and including post-industrialwaste that the commission or EPA has determined are feedstocks andnot solid waste.
The commission proposes to amend §335.1(160)(A)(v) to revisethe definition of "Solid waste" to implement revisions to the definitionof "Solid waste" in THSC, §361.003, as amended by HB 3060. HB3060 expanded the existing conditional exclusions from the definitionof "Solid waste" applicable to post-use polymers and recovered feedstocksprocessed through pyrolysis and gasification that are not classifiedas hazardous waste to also include post-use polymers and recoveredfeedstocks processed through solvolysis or depolymerization that arenot classified as hazardous waste. The conditional exclusion requiresthat the facility operator keep records on-site demonstrating thatpost-use polymers and recovered feedstocks are converted into productsfor subsequent beneficial reuse and that solid waste generated fromconverting the materials is disposed of at a solid waste managementfacility authorized by the commission under THSC, Chapter 361.
The commission proposes §335.1(162) to add the definitionof "Solvolysis." This amendment would implement HB 3060 by addinga new definition of "Solvolysis" to implement the new definition of"Solvolysis" in THSC, §361.003. The proposed definition wouldalso implement HB 3060 by clarifying that the conditional exclusionsfrom classification and regulation as solid waste applicable to plasticsrecycling is not applicable to a solvolysis manufacturing processthat produces fuel products.
§335.206, Petitions for Rulemaking
The commission proposes to amend §335.206 by removing an extracomma and replacing the reference to 30 TAC §275.78 with thecorrect citation, 30 TAC §20.15. The rules regarding rule petitionswere previously moved from §275.78 to §20.15 without substantiverevisions in accordance with a procedural rule reorganization project(21 TexReg 4719).
§335.325, Industrial Solid Waste and Hazardous Waste Management Fee Assessment
The commission proposes to amend §335.325(d) and (m) by replacingthe reference to 30 TAC §335.69 with the correct citation, 30TAC §335.53. The conditional exemptions from permitting requirementsfor hazardous waste generators were repealed from 30 TAC §335.69and adopted in 30 TAC §335.53 as part of the commission's adoptionof the federal Hazardous Waste Generator Improvements Rule (47 TexReg318). The Generator Improvements Rule (81 FR 85732) reorganized 40Code of Federal Regulations Part 262 and defined "condition for exemption"as requirements that must be met in order to obtain an exemption fromany applicable requirement.
§335.329, Records and Reports
The commission proposes to amend §335.329(a)(2) by replacingthe reference to 30 TAC §361.326 with the correct citation, 30TAC §335.326. The reference to §361.326 is a typographical error.
Fiscal Note: Costs to State and Local Government
Kyle Girten, Analyst in the Budget and Planning Division, has determinedthat for the first five-year period the proposed rules are in effect,no costs are anticipated for the agency or for other units of stateor local government as a result of administration or enforcement ofthe proposed rule.
Public Benefits and Costs
Mr. Girten determined that for each year of the first five yearsthe proposed rules are in effect, the public benefit will be compliancewith state law, specifically HB 3060 from the 88th Regular LegislativeSession (2023). Additionally, the public will benefit from the updateof citations or references of state rules.
Local Employment Impact Statement
The commission reviewed this proposed rulemaking and determinedthat a Local Employment Impact Statement is not required because theproposed rulemaking does not adversely affect a local economy in amaterial way for the first five years that the proposed rule is in effect.
Rural Community Impact Assessment
The commission reviewed this proposed rulemaking and determinedthat the proposed rulemaking does not adversely affect rural communitiesin a material way for the first five years that the proposed rulesare in effect. The amendments would apply statewide and have the sameeffect in rural communities as in urban communities.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businessesdue to the implementation or administration of the proposed rule forthe first five-year period the proposed rules are in effect.
Small Business Regulatory Flexibility Analysis
The commission reviewed this proposed rulemaking and determinedthat a Small Business Regulatory Flexibility Analysis is not requiredbecause the proposed rule does not adversely affect a small or micro-businessin a material way for the first five years the proposed rules arein effect.
Government Growth Impact Statement
The commission prepared a Government Growth Impact Statement assessmentfor this proposed rulemaking. The proposed rulemaking does not createor eliminate a government program and will not require an increaseor decrease in future legislative appropriations to the agency. Theproposed rulemaking does not require the creation of new employeepositions, eliminate current employee positions, nor require an increaseor decrease in fees paid to the agency. The proposed rulemaking amendsan existing regulation to be consistent with state law, and it doesnot create, expand, repeal, or limit an existing regulation. The proposedrulemaking does not increase or decrease the number of individualssubject to its applicability. During the first five years, the proposedrule should not impact positively or negatively the state's economy.
Draft Regulatory Impact Analysis Determination
The commission reviewed the proposed rulemaking in light of theregulatory analysis requirements of Texas Government Code, §2001.0225and determined that the rulemaking is not subject to Texas GovernmentCode, §2001.0225. Texas Government Code, §2001.0225 appliesto a "Major environmental rule" which is defined in Texas GovernmentCode, §2001.0225(g)(3) as a rule with a specific intent "to protectthe environment or reduce risks to human health from environmentalexposure and that may adversely affect in a material way the economy,a sector of the economy, productivity, competition, jobs, the environment,or the public health and safety of the state or a sector of the state."
First, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because its specific intent is notto protect the environment or reduce risks to human health from environmentalexposure. The specific intent of the proposed rulemaking is to add,remove, and revise definitions in Chapter 335 so that they are consistentwith the definitions in THSC Chapter 361 and to make minor and non-substantiveupdates to incorrect rule citations or references in Chapter 335.
Second, the proposed rulemaking does not meet the statutory definitionof a "Major environmental rule" because the proposed rules will notadversely affect in a material way the economy, a sector of the economy,productivity, competition, jobs, the environment, or the public healthand safety of the state or a sector of the state. It is not anticipatedthat the cost of complying with the proposed rules will be significantwith respect to the economy as a whole or with respect to a sectorof the economy; therefore, the proposed rulemaking will not adverselyaffect in a material way the economy, a sector of the economy, productivity,competition, jobs, the environment, or the public health and safetyof the state or a sector of the state.
Finally, the proposed rulemaking does not meet any of the fourapplicability requirements for a "Major environmental rule" listedin Texas Government Code, §2001.0225(a). Texas Government Code,§2001.0225 only applies to a Major environmental rule, the resultof which is to: 1) exceed a standard set by federal law, unless therule is specifically required by state law; 2) exceed an express requirementof state law, unless the rule is specifically required by federallaw; 3) exceed a requirement of a delegation agreement or contractbetween the state and an agency or representative of the federal governmentto implement a state and federal program; or 4) adopt a rule solelyunder the general powers of the agency instead of under a specificstate law. This proposed rulemaking does not meet any of the fourpreceding applicability requirements.
This proposed rulemaking does not meet the statutory definitionof a "Major environmental rule," nor does it meet any of the fourapplicability requirements for a "Major environmental rule." Therefore,this rulemaking is not subject to Texas Government Code, §2001.0225.
The commission invites public comment regarding the Draft RegulatoryImpact Analysis Determination during the public comment period. Writtencomments on the Draft Regulatory Impact Analysis Determination maybe submitted to the contact person at the address listed under theSubmittal of Comments section of this preamble.
Takings Impact Assessment
The commission has prepared a takings impact assessment for theseproposed rules in accordance with Texas Government Code, §2007.043. The commission'spreliminary assessment is that implementation of these proposed ruleswould not constitute a taking of real property. The commission proposesthis rulemaking for the purpose of adding, removing, and revisingdefinitions in Chapter 335 so that they are consistent with the definitionsin THSC Chapter 361 and to make minor and non-substantive updatesto incorrect rule citations or references in Chapter 335.
The commission's analysis indicates that Texas Government Code,Chapter 2007, does not apply to these proposed rules based upon anexception to applicability in TGC, §2007.003(b)(5). The proposedrules would add, remove, and revise definitions in Chapter 335 sothat they are consistent with the definitions in THSC Chapter 361and make minor and non-substantive updates to incorrect rule citationsor references in Chapter 335, which provides a unilateral expectationthat does not rise to the level of a recognized interest in privatereal property. Therefore, Texas Government Code, Chapter 2007 doesnot apply to these proposed rule changes because the proposed rulemakingfalls within the exception under Texas Government Code, §2007.003(b)(5).
Further, the commission determined that promulgation of these proposedrules will be neither a statutory nor a constitutional taking of privatereal property. Specifically, there are no burdens imposed on privatereal property under the rulemaking because the proposed rules neitherrelate to, nor have any impact on, the use or enjoyment of privatereal property, and there will be no reduction in property value asa result of these rules. Therefore, the proposed rules will not constitutea taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the proposed rulemaking and found the proposalis a rulemaking identified in the Coastal Coordination Act ImplementationRules, 31 TAC §505.11(b)(4) relating to rules subject to theCoastal Management Program, and will, therefore, require that goalsand policies of the Texas Coastal Management Program (CMP) be consideredduring the rulemaking process.
The commission reviewed this rulemaking for consistency with theCMP goals and policies in accordance with the regulations of the CoastalCoordination Advisory Committee and determined that the amendmentsare consistent with CMP goals and policies because the rulemakingwould not have direct or significant adverse effect on any coastalnatural resource areas; would not have a substantive effect on commissionactions subject to the CMP; and promulgation and enforcement of theamendments would not violate (exceed) any standards identified inthe applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submittedto the contact person at the address listed under the Submittal ofComments section of this preamble.
Announcement of Hearing
The commission will hold a hybrid virtual and in-person publichearing on this proposal in Austin on June 20, 2024, at 10:00 a.m.in Building F, Room 2210, at the commission's central office locatedat 12100 Park 35 Circle. The hearing is structured for the receiptof oral or written comments by interested persons. Individuals maypresent oral statements when called upon in order of registration.Open discussion will not be permitted during the hearing; however,commission staff members will be available to discuss the proposal30 minutes prior to the hearing at 9:30 a.m.
Individuals who plan to attend the hearing virtually and want toprovide oral comments and/or want their attendance on record mustregister by June 14, 2024. To register for the hearing, please emailRules@tceq.texas.gov and provide the following information: your name,your affiliation, your email address, your phone number, and whetheror not you plan to provide oral comments during the hearing. Instructionsfor participating in the hearing will be sent on June 18, 2024, tothose who register for the hearing.
For the public who do not wish to provide oral comments but wouldlike to view the hearing may do so at no cost at: https://teams.microsoft.com/l/meetup-join/19%3ameeting_Zjg1MDI0YmYtNGYwYi00ZWU4LTg5MWYtMDg3MTBiNTc1ODc4%40thread.v2/0?context=%7B%22Tid%22%3A%22871a83a4-a1ce-4b7a-8156-3bcd93a08fba%22%2C%22Oid%22%3A%22e74a40ea-69d4-469d-a8ef-06f2c9ac2a80%22%2C%22IsBroadcastMeeting%22%3Atrue%2C%22role%22%3A%22a%22%7D&btype=a&role=a
Persons who have special communication or other accommodation needswho are planning to attend the hearing should contact Sandy Wong,Office of Legal Services at (512) 239-1802 or (800) RELAY-TX (TDD).Requests should be made as far in advance as possible.
Submittal of Comments
Written comments may be submitted to Gwen Ricco, MC 205, Officeof Legal Services, Texas Commission on Environmental Quality, P.O.Box 13087, Austin, Texas 78711-3087, or faxed to fax4808@tceq.texas.gov. Electronic commentsmay be submitted at: https://tceq.commentinput.com/comment/search.File size restrictions may apply to comments being submitted via theTCEQ Public Comments system. All comments should reference Rule ProjectNumber 2023-135-330-WS. The comment period closes at 11:59 p.m. onJune 25, 2024. Please choose one of the methods provided to submityour written comments.
Copies of the proposed rulemaking can be obtained from the commission'swebsite at https://www.tceq.texas.gov/rules/propose_adopt.html. Forfurther information, please contact Jarita Sepulvado, Waste PermitsDivision, (512) 239-4413.
SUBCHAPTER A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
Statutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; THSC §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act; and THSC, §361.078 which identifies that THSC Chapter361 Subchapter B does not abridge, modify or restrict the commission'sauthority to adopt rules issue permits and enforce the terms of permitsas necessary to maintain state authorization of Texas' hazardous wasteprogram; and THSC, §361.119, which requires the commission toadopt rules and to adopt rules consistent with THSC, Chapter 361 toensure that solid waste processing facilities are regulated as solidwaste facilities and not allowed to operate unregulated as recycling facilities.
The proposed amendment implements House Bill 3060, 88th Texas Legislature, 2023.
§335.1.Definitions.
In addition to the terms defined in Chapter 3 of this title(relating to Definitions), the following words and terms, when usedin this chapter, have the following meanings.
(1) Aboveground tank--A device meeting the definitionof "Tank" in this section and that is situated in such a way thatthe entire surface area of the tank is completely above the planeof the adjacent surrounding surface and the entire surface area ofthe tank (including the tank bottom) is able to be visually inspected.
(2) Act--Texas Health and Safety Code, Chapter 361.
(3) Active life--The period from the initial receiptof hazardous waste at the facility until the executive director receivescertification of final closure.
(4) Active portion--That portion of a facility whereprocessing, storage, or disposal operations are being or have beenconducted after November 19, 1980, and which is not a closed portion.(See also "Closed portion" and "Inactive portion.")
(5) Activities associated with the exploration, development,and production of oil or gas or geothermal resources--Activities associated with:
(A) the drilling of exploratory wells, oil wells, gaswells, or geothermal resource wells;
(B) the production of oil or gas or geothermal resources, including:
(i) activities associated with the drilling of injectionwater source wells that penetrate the base of usable quality water;
(ii) activities associated with the drilling of cathodicprotection holes associated with the cathodic protection of wellsand pipelines subject to the jurisdiction of the commission to regulatethe production of oil or gas or geothermal resources;
(iii) activities associated with gasoline plants, naturalgas or natural gas liquids processing plants, pressure maintenanceplants, or repressurizing plants;
(iv) activities associated with any underground naturalgas storage facility, provided the terms "Natural gas" and "Storagefacility" shall have the meanings set out in the Texas Natural ResourcesCode, §91.173;
(v) activities associated with any underground hydrocarbonstorage facility, provided the terms "Hydrocarbons" and "Undergroundhydrocarbon storage facility" shall have the meanings set out in theTexas Natural Resources Code, §91.201; and
(vi) activities associated with the storage, handling,reclamation, gathering, transportation, or distribution of oil orgas prior to the refining of such oil or prior to the use of suchgas in any manufacturing process or as a residential or industrial fuel;
(C) the operation, abandonment, and proper pluggingof wells subject to the jurisdiction of the commission to regulatethe exploration, development, and production of oil or gas or geothermalresources; and
(D) the discharge, storage, handling, transportation,reclamation, or disposal of waste or any other substance or materialassociated with any activity listed in subparagraphs (A) - (C) ofthis paragraph, except for waste generated in connection with activitiesassociated with gasoline plants, natural gas or natural gas liquidsprocessing plants, pressure maintenance plants, or repressurizingplants if that waste is a hazardous waste as defined by the administratorof the United States Environmental Protection Agency in accordancewith the Federal Solid Waste Disposal Act, as amended (42 United StatesCode, §§6901 et seq.).
(6) Acute hazardous waste--Hazardous wastes that meetthe listing criteria in 40 Code of Federal Regulations (CFR) §261.11(a)(2)and therefore are either listed in 40 CFR §261.31 with the assignedhazard code of (H) or are listed in 40 CFR §261.33(e).
(7) Administrator--The administrator of the UnitedStates Environmental Protection Agency or his designee.
(8) Advanced recycling facility--Amanufacturing facility that receives, stores, and converts post-usepolymers and recoverable feedstocks into valuable raw materials, valuableintermediate products, or valuable final products using advanced recyclingtechnologies and processes including pyrolysis, gasification, solvolysis,and depolymerization. An advanced recycling facility is not a solidwaste facility, final disposal facility, waste-to-energy facility,or incinerator.
(9) [(8)] Aerosol can--A non-refillablereceptacle containing a gas compressed, liquefied, or dissolved underpressure, the sole purpose of which is to expel a liquid, paste, orpowder and fitted with a self-closing release device allowing thecontents to be ejected by the gas.
(10) [(9)] AES filing compliancedate--The date that the United States Environmental Protection Agency(EPA) announces in the Federal Register, onor after which exporters of hazardous waste and exporters of cathoderay tubes for recycling are required to file EPA information in theAutomated Export System or its successor system, under the InternationalTrade Data System platform.
(11) [(10)] Airbag waste--Anyhazardous waste airbag modules or hazardous waste airbag inflators.
(12) [(11)] Airbag waste collectionfacility--Any facility that receives airbag waste from airbag handlerssubject to regulation under §335.281 of this title (relatingto Airbag Waste) and accumulates the waste for more than ten days.
(13) [(12)] Airbag waste handler--Anyperson, by site, who generates airbag waste that is subject to regulationunder this chapter.
(14) [(13)] Ancillary equipment--Anydevice that is used to distribute, meter, or control the flow of solidwaste or hazardous waste from its point of generation to a storageor processing tank(s), between solid waste or hazardous waste storageand processing tanks to a point of disposal on site, or to a pointof shipment for disposal off site. Such devices include, but are notlimited to, piping, fittings, flanges, valves, and pumps.
(15) [(14)] Aquifer--A geologicformation, group of formations, or part of a formation capable ofyielding a significant amount of groundwater to wells or springs.
(16) [(15)] Area of concern--Anyarea of a facility under the control or ownership of an owner or operatorwhere a release to the environment of hazardous wastes or hazardousconstituents has occurred, is suspected to have occurred, or may occur,regardless of the frequency or duration.
(17) [(16)] Authorized representative--Theperson responsible for the overall operation of a facility or an operationunit (i.e., part of a facility), e.g., the plant manager, superintendent,or person of equivalent responsibility.
(18) [(17)] Battery--As definedin §335.261 of this title (relating to Universal Waste Rule).
(19) [(18)] Boiler--An encloseddevice using controlled flame combustion and having the following characteristics:
(A) the unit must have physical provisions for recoveringand exporting thermal energy in the form of steam, heated fluids,or heated gases;
(B) the unit's combustion chamber and primary energyrecovery section(s) must be of integral design. To be of integraldesign, the combustion chamber and the primary energy recovery section(s)(such as waterwalls and superheaters) must be physically formed intoone manufactured or assembled unit. A unit in which the combustionchamber and the primary energy recovery section(s) are joined onlyby ducts or connections carrying flue gas is not integrally designed;however, secondary energy recovery equipment (such as economizersor air preheaters) need not be physically formed into the same unitas the combustion chamber and the primary energy recovery section.The following units are not precluded from being boilers solely becausethey are not of integral design:
(i) process heaters (units that transfer energy directlyto a process stream); and
(ii) fluidized bed combustion units;
(C) while in operation, the unit must maintain a thermalenergy recovery efficiency of at least 60%, calculated in terms ofthe recovered energy compared with the thermal value of the fuel; and
(D) the unit must export and utilize at least 75% ofthe recovered energy, calculated on an annual basis. In this calculation,no credit shall be given for recovered heat used internally in thesame unit. (Examples of internal use are the preheating of fuel orcombustion air, and the driving of induced or forced draft fans orfeedwater pumps); or
(E) the unit is one which the executive director hasdetermined, on a case-by-case basis, to be a boiler, after consideringthe standards in §335.20 of this title (relating to VarianceTo Be Classified as a Boiler).
(20) [(19)] Captive facility--Afacility that accepts wastes from only related (within the same corporation)off-site generators.
(21) [(20)] Captured facility--Amanufacturing or production facility that generates an industrialsolid waste or hazardous waste that is routinely stored, processed,or disposed of on a shared basis in an integrated waste managementunit owned, operated by, and located within a contiguous manufacturing complex.
(22) [(21)] Captured receiver--Areceiver that is located within the property boundaries of the generatorsfrom which it receives waste.
(23) [(22)] Carbon dioxide stream--Carbondioxide that has been captured from an emission source (e.g., powerplant), plus incidental associated substances derived from the sourcematerials and the capture process, and any substances added to thestream to enable or improve the injection process.
(24) [(23)] Carbon regenerationunit--Any enclosed thermal treatment device used to regenerate spentactivated carbon.
(25) [(24)] Cathode ray tube(CRT)--A vacuum tube, composed primarily of glass, which is the visualor video display component of an electronic device. A used, intactCRT means a CRT whose vacuum has not been released. A used, brokenCRT means its glass has been removed from its housing, or casing whosevacuum has been released.
(26) [(25)] Cathode ray tube(CRT) collector--A person who receives used, intact CRTs for recycling,repair, resale, or donation.
(27) [(26)] Cathode ray tube(CRT) exporter--Any person in the United States who initiates a transactionto send used CRTs outside the United States or its territories forrecycling or reuse, or any intermediary in the United States arrangingfor such export.
(28) [(27)] Cathode ray tube(CRT) glass manufacturer--An operation or part of an operation thatuses a furnace to manufacture CRT glass.
(29) [(28)] Cathode ray tube(CRT) processing--Conducting all of the following activities:
(A) receiving broken or intact CRTs;
(B) intentionally breaking intact CRTs or further breakingor separating broken CRTs; and
(C) sorting or otherwise managing glass removed fromCRT monitors.
(30) [(29)] Central accumulationarea--Any on-site hazardous waste accumulation area with hazardouswaste accumulating in units subject to either 40 Code of Federal Regulations(CFR) §262.16 or §262.17, as these sections are adoptedunder §335.53 of this title (relating to General Standards Applicableto Generators of Hazardous Waste). In accordance with 40 CFR Part262, Subpart K, as adopted by reference under §335.59 of thistitle (relating to Alternative Requirements for Hazardous Waste Determinationand Accumulation of Unwanted Material for Laboratories Owned by EligibleAcademic Entities), a central accumulation area at an eligible academicentity that chooses to operate under 40 CFR Part 262, Subpart K, isalso subject to 40 CFR §262.211 as adopted by reference under§335.59 of this title when accumulating unwanted material and/orhazardous waste.
(31) [(30)] Certification--Astatement of professional opinion based upon knowledge and belief.
(32) [(31)] Class 1 wastes--Anyindustrial solid waste or mixture of industrial solid wastes whichbecause of its concentration, or physical or chemical characteristics,is toxic, corrosive, flammable, a strong sensitizer or irritant, agenerator of sudden pressure by decomposition, heat, or other means,or may pose a substantial present or potential danger to human healthor the environment when improperly processed, stored, transported,or disposed of or otherwise managed, as further defined in §335.505of this title (relating to Class 1 Waste Determination).
(33) [(32)] Class 2 wastes--Anyindividual solid waste or combination of industrial solid waste whichcannot be described as hazardous, Class 1, or Class 3 as defined in§335.506 of this title (relating to Class 2 Waste Determination).
(34) [(33)] Class 3 wastes--Inertand essentially insoluble industrial solid waste, usually including,but not limited to, materials such as rock, brick, glass, dirt, andcertain plastics and rubber, etc., that are not readily decomposable,as further defined in §335.507 of this title (relating to Class3 Waste Determination).
(35) [(34)] Closed portion--Thatportion of a facility which an owner or operator has closed in accordancewith the approved facility closure plan and all applicable closurerequirements. (See also "Active portion"and "Inactive portion.")
(36) [(35)] Closure--The actof permanently taking a waste management unit or facility out of service.
(37) [(36)] Commercial hazardouswaste management facility--Any hazardous waste management facilitythat accepts hazardous waste or polychlorinated biphenyl compoundsfor a charge, except a captured facility or a facility that acceptswaste only from other facilities owned or effectively controlled bythe same person.
(38) [(37)] Component--Eitherthe tank or ancillary equipment of a tank system.
(39) [(38)] Conditionally exemptsmall quantity generator--A conditionally exempt small quantity generator(CESQG) is a very small quantity generator as defined in this sectionthat meets the independent requirements and the conditions for exemptionfor a very small quantity generator under §335.53 of this title(relating to General Standards Applicable to Generators of HazardousWaste). A reference to a conditionally exempt small quantity generator,"CESQG", or a person who generates no more than 100 kilograms of hazardouswaste in a calendar month is a reference to a very small quantity generator.
(40) [(39)] Confined aquifer--Anaquifer bounded above and below by impermeable beds or by beds ofdistinctly lower permeability than that of the aquifer itself; anaquifer containing confined groundwater.
(41) [(40)] Contained--Hazardoussecondary materials held in a unit (including a "Land-based unit"as defined in this section) that meets the following criteria:
(A) the unit is in good condition, with no leaks orother continuing or intermittent unpermitted releases of the hazardoussecondary materials to the environment, and is designed, as appropriatefor the hazardous secondary materials, to prevent releases of hazardoussecondary materials to the environment. Unpermitted releases are releasesthat are not covered by a permit (such as a permit to discharge towater or air) and may include, but are not limited to, releases throughsurface transport by precipitation runoff, releases to soil and groundwater,wind-blown dust, fugitive air emissions, and catastrophic unit failures;
(B) the unit is properly labeled or otherwise has asystem (such as a log) to immediately identify the hazardous secondarymaterials in the unit;
(C) the unit holds hazardous secondary materials thatare compatible with other hazardous secondary materials placed inthe unit and is compatible with the materials used to construct theunit and addresses any potential risks of fires or explosions; and
(D) hazardous secondary materials in units that meetthe requirements of 40 Code of Federal Regulations Parts 264 and 265are presumptively contained.
(42) [(41)] Container--Any portabledevice in which a material is stored, transported, processed, or disposedof, or otherwise handled.
(43) [(42)] Containment building--Ahazardous waste management unit that is used to store or treat hazardouswaste under the provisions of §335.112(a)(21) or §335.152(a)(19)of this title (relating to Standards).
(44) [(43)] Contaminant--Includes,but is not limited to, "Solid waste," "Hazardous waste," and "Hazardouswaste constituent" as defined in this section;" "Pollutant" as definedin Texas Water Code (TWC), §26.001, and Texas Health and SafetyCode (THSC),"§361.401; "Hazardous substance" as defined in THSC,§361.003; and other substances that are subject to the TexasHazardous Substances Spill Prevention and Control Act, TWC, §§26.261- 26.267.
(45) [(44)] Contaminated medium/media--Aportion or portions of the physical environment to include soil, sediment,surface water, groundwater or air, that contain contaminants at levelsthat pose a substantial present or future threat to human health andthe environment.
(46) [(45)] Contingency plan--Adocument setting out an organized, planned, and coordinated courseof action to be followed in case of a fire, explosion, or releaseof hazardous waste or hazardous waste constituents which could threatenhuman health or the environment.
(47) [(46)] Control--To applyengineering measures such as capping or reversible treatment methodsand/or institutional measures such as deed restrictions to facilitiesor areas with wastes or contaminated media which result in remediesthat are protective of human health and the environment when combinedwith appropriate maintenance, monitoring, and any necessary furthercorrective action.
(48) [(47)] Corrosion expert--Aperson who, by reason of his knowledge of the physical sciences andthe principles of engineering and mathematics, acquired by a professionaleducation and related practical experience, is qualified to engagein the practice of corrosion control on buried or submerged metalpiping systems and metal tanks. Such a person must be certified asbeing qualified by the National Association of Corrosion Engineersor be a registered professional engineer who has certification orlicensing that includes education and experience in corrosion controlon buried or submerged metal piping systems and metal tanks.
(49) [(48)] Decontaminate--Toapply a treatment process(es) to wastes or contaminated media wherebythe substantial present or future threat to human health and the environmentis eliminated.
(50) Depolymerization--A manufacturingprocess through which post-use polymers are broken down into:
(A) smaller molecules, including monomers and oligomers; or
(B) raw materials, intermediate products, or finalproducts, including plastic feedstocks, chemical feedstocks, basicand unfinished chemicals, waxes, lubricants, or coatings; and
(C) does not include crude oil, diesel, gasoline, dieselblend stock, gasoline blend stock, home heating oil, ethanol, or another fuel.
(51) [(49)] Designated facility--Ahazardous waste treatment, storage, or disposal facility which: hasreceived a permit (or interim status) in accordance with the requirementsof 40 Code of Federal Regulations (CFR) Parts 124 and 270; has receiveda permit (or interim status) from a state authorized in accordancewith 40 CFR Part 271; or is regulated under 40 CFR §261.6(c)(2)or 40 CFR Part 266, Subpart F and has been designated on the manifestby the generator pursuant to 40 CFR §262.20. For hazardous wastes,if a waste is destined to a facility in an authorized state whichhas not yet obtained authorization to regulate that particular wasteas hazardous, then the designated facility must be a facility allowedby the receiving state to accept such waste. For Class 1 wastes, adesignated facility is any treatment, storage, or disposal facilityauthorized to receive the Class 1 waste that has been designated onthe manifest by the generator. Designated facility also means a generatorsite designated on the manifest to receive its waste as a return shipmentfrom a facility that has rejected the waste in accordance with 40CFR §264.72(f) as adopted under §335.152 of this title (relatingto Standards) or 40 CFR §265.72(f) as adopted under §335.112of this title (relating to Standards).
(52) [(50)] Destination facility--Hasthe definition adopted under §335.261 of this title (relatingto Universal Waste Rule).
(53) [(51)] Dike--An embankmentor ridge of either natural or man-made materials used to prevent themovement of liquids, sludges, solids, or other materials.
(54) [(52)] Dioxins and furans(D/F)--Tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxinsand furans.
(55) [(53)] Discharge or hazardouswaste discharge--The accidental or intentional spilling, leaking,pumping, pouring, emitting, emptying, or dumping of waste into oron any land or water.
(56) [(54)] Disposal--The discharge,deposit, injection, dumping, spilling, leaking, or placing of anysolid waste or hazardous waste (whether containerized or uncontainerized)into or on any land or water so that such solid waste or hazardouswaste or any constituent thereof may enter the environment or be emittedinto the air or discharged into any waters, including groundwaters.
(57) [(55)] Disposal facility--Afacility or part of a facility at which solid waste is intentionallyplaced into or on any land or water, and at which waste will remainafter closure. The term "Disposal facility" does not include a correctiveaction management unit into which remediation wastes are placed.
(58) [(56)] Drip pad--An engineeredstructure consisting of a curbed, free-draining base, constructedof non-earthen materials and designed to convey preservative kick-backor drippage from treated wood, precipitation, and surface water run-onto an associated collection system at wood preserving plants.
(59) [(57)] Electronic import-exportreporting compliance date--The date that the United States EnvironmentalProtection Agency (EPA) announces in the FederalRegister, on or after which exporters, importers, and receivingfacilities are required to submit certain export and import relateddocuments to EPA using EPA's waste Import Export Tracking System,or its successor system.
(60) [(58)] Electronic manifestor e-Manifest--The electronic format of the hazardous waste manifestthat is obtained from the United States Environmental Protection Agency's(EPA's) national e-Manifest system and transmitted electronicallyto the system, and that is the legal equivalent of EPA Forms 8700-22(Manifest) and 8700-22A (Continuation Sheet).
(61) [(59)] Electronic manifestsystem or e-Manifest system--The United States Environmental ProtectionAgency's national information technology system through which theelectronic manifest may be obtained, completed, transmitted, and distributedto users of the electronic manifest and to regulatory agencies.
(62) [(60)] Elementary neutralizationunit--A device which:
(A) is used for neutralizing wastes which are hazardousonly because they exhibit the corrosivity characteristic defined in40 Code of Federal Regulations (CFR) §261.22, or are listed in40 CFR Part 261, Subpart D, only for this reason; or is used for neutralizingthe pH of nonhazardous industrial solid waste; and
(B) meets the definition of "Tank," "Tank system,""Container," or "Transport vehicle," as defined in this section; or"Vessel" as defined in 40 CFR §260.10.
(63) [(61)] Essentially insoluble--Anymaterial, which if representatively sampled and placed in static ordynamic contact with deionized water at ambient temperature for sevendays, will not leach any quantity of any constituent of the materialinto the water in excess of current United States Public Health Serviceor United States Environmental Protection Agency limits for drinkingwater as published in the Federal Register.
(64) [(62)] Equivalent method--Anytesting or analytical method approved by the administrator under 40Code of Federal Regulations §260.20 and §260.21.
(65) [(63)] Existing portion--Thatland surface area of an existing waste management unit, included inthe original Part A permit application, on which wastes have beenplaced prior to the issuance of a permit.
(66) [(64)] Existing tank systemor existing component--A tank system or component that is used forthe storage or processing of hazardous waste and that is in operation,or for which installation has commenced on or prior to July 14, 1986.Installation will be considered to have commenced if the owner oroperator has obtained all federal, state, and local approvals or permitsnecessary to begin physical construction of the site or installationof the tank system and if either:
(A) a continuous on-site physical construction or installationprogram has begun; or
(B) the owner or operator has entered into contractualobligations--which cannot be canceled or modified without substantialloss--for physical construction of the site or installation of thetank system to be completed within a reasonable time.
(67) [(65)] Explosives or munitionsemergency--A situation involving the suspected or detected presenceof unexploded ordnance, damaged or deteriorated explosives or munitions,an improvised explosive device, other potentially explosive materialor device, or other potentially harmful military chemical munitionsor device, that creates an actual or potential imminent threat tohuman health, including safety, or the environment, including property,as determined by an explosives or munitions emergency response specialist.These situations may require immediate and expeditious action by anexplosives or munitions emergency response specialist to control,mitigate, or eliminate the threat.
(68) [(66)] Explosives or munitionsemergency response--All immediate response activities by an explosivesand munitions emergency response specialist to control, mitigate,or eliminate the actual or potential threat encountered during anexplosives or munitions emergency, subject to the following:
(A) an explosives or munitions emergency response includesin-place render-safe procedures, treatment or destruction of the explosivesor munitions and/or transporting those items to another location tobe rendered safe, treated, or destroyed;
(B) any reasonable delay in the completion of an explosivesor munitions emergency response caused by a necessary, unforeseen,or uncontrollable circ*mstance will not terminate the explosives ormunitions emergency; and
(C) explosives and munitions emergency responses canoccur on either public or private lands and are not limited to responsesat hazardous waste facilities.
(69) [(67)] Explosives or munitionsemergency response specialist--An individual trained in chemical orconventional munitions or explosives handling, transportation, render-safeprocedures, or destruction techniques, including United States Departmentof Defense (DOD) emergency explosive ordnance disposal, technicalescort unit, and DOD-certified civilian or contractor personnel; and,other federal, state, or local government, or civilian personnel similarlytrained in explosives or munitions emergency responses.
(70) [(68)] Extrusion--A processusing pressure to force ground poultry carcasses through a decreasing-diameterbarrel or nozzle, causing the generation of heat sufficient to killpathogens, and resulting in an extruded product acceptable as a feed ingredient.
(71) [(69)] Facility--Includes:
(A) all contiguous land, and structures, other appurtenances,and improvements on the land, used for storing, processing, or disposingof municipal hazardous waste or industrial solid waste, or for themanagement of hazardous secondary materials prior to reclamation.A facility may consist of several treatment, storage, or disposaloperational units (e.g., one or more landfills, surface impoundments,or combinations of them);
(B) for the purpose of implementing corrective actionunder §335.167 of this title (relating to Corrective Action forSolid Waste Management Units) or §335.602(a)(5) of this title(relating to Standards), all contiguous property under the controlof the owner or operator seeking a permit for the treatment, storage,and/or disposal of hazardous waste. This definition also applies tofacilities implementing corrective action under Texas Water Code,§7.031 (Corrective Action Relating to Hazardous Waste);
(C) regardless of subparagraph (B) of this paragraph,a "Remediation" waste management site," as defined in 40 Code of FederalRegulations §260.10, is not a facility that is subject to §335.167of this title, but is subject to corrective action requirements ifthe site is located within such a facility.
(72) [(70)] Final closure--Theclosure of all hazardous waste management units at the facility inaccordance with all applicable closure requirements so that hazardouswaste management activities under Subchapter E of this chapter (relatingto Interim Standards for Owners and Operators of Hazardous Waste Treatment,Storage, or Disposal Facilities) and Subchapter F of this chapter(relating to Permitting Standards for Owners and Operators of HazardousWaste Treatment, Storage, or Disposal Facilities) are no longer conductedat the facility unless subject to the provisions in Subchapter C ofthis chapter (relating to Standards Applicable to Generators of Hazardous Waste).
(73) [(71)] Food-chain crops--Tobacco,crops grown for human consumption, and crops grown for feed for animalswhose products are consumed by humans.
(74) [(72)] Freeboard--The verticaldistance between the top of a tank or surface impoundment dike, andthe surface of the waste contained therein.
(75) [(73)] Free liquids--Liquidswhich readily separate from the solid portion of a waste under ambienttemperature and pressure.
(76) [(74)] Gasification--A processthrough which recoverable feedstocks are heated and converted intoa fuel-gas mixture in an oxygen-deficient atmosphere and the mixtureis converted into valuable raw materials, valuable intermediateproducts, or valuable final products, which include plastic monomers,chemicals, waxes, lubricants, or chemical feedstocks; and do not includecrude oil, diesel, gasoline, diesel blend stock, gasoline blend stock,home heating oil, ethanol, or another fuel. [a valuableraw, intermediate, or final product, including a plastic, monomer,chemical, wax, lubricant, or chemical feedstock or crude oil, diesel,gasoline, diesel and gasoline blendstock, home heating oil, ethanol,or another fuel.]
[(75) Gasification facility--A facilitythat receives, separates, stores, and converts post-use polymers andrecoverable feedstocks using gasification.]
(77) [(76)] Generator--Any person,by site, who produces municipal hazardous waste or industrial solidwaste; any person who possesses municipal hazardous waste or industrialsolid waste to be shipped to any other person; or any person whoseact first causes the solid waste to become subject to regulation underthis chapter. For the purposes of this regulation, a person who generatesor possesses Class 3 wastes only shall not be considered a generator.
(78) [(77)] Groundwater--Waterbelow the land surface in a zone of saturation.
(79) [(78)] Hazardous industrialwaste--Any industrial solid waste or combination of industrial solidwastes identified or listed as a hazardous waste by the administratorof the United States Environmental Protection Agency in accordancewith the Resource Conservation and Recovery Act of 1976, §3001(42 United States Code, §6921). The administrator has identifiedthe characteristics of hazardous wastes and listed certain wastesas hazardous in 40 Code of Federal Regulations Part 261. The executivedirector will maintain in the offices of the commission a currentlist of hazardous wastes, a current set of characteristics of hazardouswaste, and applicable appendices, as promulgated by the administrator.
(80) [(79)] Hazardous secondarymaterial--A secondary material (e.g., spent material, by-product,or sludge) that, when discarded, would be identified as "Hazardouswaste" as defined in this section.
(81) [(80)] Hazardous secondarymaterial generator--Any person whose act or process produces hazardoussecondary materials at the generating facility. For purposes of thisparagraph, "generating facility" means all contiguous property owned,leased, or otherwise controlled by the hazardous secondary materialgenerator. For the purposes of 40 Code of Federal Regulations §261.4(a)(23),a facility that collects hazardous secondary materials from otherpersons is not the hazardous secondary material generator.
(82) [(81)] Hazardous substance--Anysubstance designated as a hazardous substance under 40 Code of FederalRegulations Part 302.
(83) [(82)] Hazardous waste--Anysolid waste identified or listed as a hazardous waste by the administratorof the United States Environmental Protection Agency in accordancewith the federal Solid Waste Disposal Act, as amended by the ResourceConservation and Recovery Act, 42 United States Code, §§6901 et seq.
(84) [(83)] Hazardous waste constituent--Aconstituent that caused the administrator to list the hazardous wastein 40 Code of Federal Regulations (CFR) Part 261, Subpart D or a constituentlisted in Table 1 of 40 CFR §261.24.
(85) [(84)] Hazardous waste managementfacility--All contiguous land, including structures, appurtenances,and other improvements on the land, used for processing, storing,or disposing of hazardous waste. The term includes a publicly- orprivately-owned hazardous waste management facility consisting ofprocessing, storage, or disposal operational hazardous waste managementunits such as one or more landfills, surface impoundments, waste piles,incinerators, boilers, and industrial furnaces, including cement kilns,injection wells, salt dome waste containment caverns, land treatmentfacilities, or a combination of units.
(86) [(85)] Hazardous waste managementunit--A landfill, surface impoundment, waste pile, industrial furnace,incinerator, cement kiln, injection well, container, drum, salt domewaste containment cavern, or land treatment unit, or any other structure,vessel, appurtenance, or other improvement on land used to managehazardous waste.
(87) [(86)] In operation--Refersto a facility which is processing, storing, or disposing of solidwaste or hazardous waste.
(88) [(87)] Inactive portion--Thatportion of a facility which is not operated after November 19, 1980. (See also "Active portion" and "Closed portion.")
(89) [(88)] Incinerator--
(A) Any enclosed device that:
(i) uses controlled flame combustion and neither meetsthe criteria for classification as a boiler, sludge dryer, or carbonregeneration unit, nor is listed as an industrial furnace; or
(ii) meets the definition of "Infrared incinerator"or "Plasma arc incinerator."
(B) Does not include an "Advanced recycling facility" [a "Gasification facility" or "Pyrolysis facility"]managing "Recoverable feedstock" as defined in this section.
(90) [(89)] Incompatible waste--Ahazardous waste which is unsuitable for:
(A) placement in a particular device or facility becauseit may cause corrosion or decay of containment materials (e.g., containerinner liners or tank walls); or
(B) commingling with another waste or material underuncontrolled conditions because the commingling might produce heator pressure, fire or explosion, violent reaction, toxic dusts, mists,fumes, or gases, or flammable fumes or gases.
(91) [(90)] Individual generationsite--The contiguous site at or on which one or more solid waste orhazardous wastes are generated. An individual generation site, suchas a large manufacturing plant, may have one or more sources of solidwaste or hazardous waste, but is considered a single or individualgeneration site if the site or property is contiguous.
(92) [(91)] Industrial furnace--Includesany of the following enclosed devices that use thermal treatment toaccomplish recovery of materials or energy:
(A) cement kilns;
(B) lime kilns;
(C) aggregate kilns;
(D) phosphate kilns;
(E) co*ke ovens;
(F) blast furnaces;
(G) smelting, melting, and refining furnaces (includingpyrometallurgical devices such as cupolas, reverberator furnaces,sintering machines, roasters, and foundry furnaces);
(H) titanium dioxide chloride process oxidation reactors;
(I) methane reforming furnaces;
(J) pulping liquor recovery furnaces;
(K) combustion devices used in the recovery of sulfurvalues from spent sulfuric acid;
(L) halogen acid furnaces for the production of acidfrom halogenated hazardous waste generated by chemical productionfacilities where the furnace is located on the site of a chemicalproduction facility, the acid product has a halogen acid content ofat least 3.0%, the acid product is used in a manufacturing process,and, except for "Hazardous waste" burned as fuel, hazardous wastefed to the furnace has a minimum halogen content of 20% as generated; and
(M) other devices the commission may list, after theopportunity for notice and comment is afforded to the public.
(93) [(92)] Industrial solidwaste--Solid waste resulting from or incidental to any process ofindustry or manufacturing, or mining or agricultural operation, whichmay include "Hazardous waste" as defined in this section.
(94) [(93)] Infrared incinerator--Anyenclosed device that uses electric powered resistance heaters as asource of radiant heat followed by an afterburner using controlledflame combustion and which is not listed as an industrial furnace.
(95) [(94)] Inground tank--Adevice meeting the definition of "Tank" in this section whereby aportion of the tank wall is situated to any degree within the ground,thereby preventing visual inspection of that external surface areaof the tank that is in the ground.
(96) [(95)] Injection well--Awell into which fluids are injected. (See also"Underground injection.")
(97) [(96)] Inner liner--A continuouslayer of material placed inside a tank or container which protectsthe construction materials of the tank or container from the containedwaste or reagents used to treat the waste.
(98) [(97)] Installation inspector--Aperson who, by reason of his knowledge of the physical sciences andthe principles of engineering, acquired by a professional educationand related practical experience, is qualified to supervise the installationof tank systems.
(99) [(98)] Intermediate facility--Anyfacility that stores hazardous secondary materials for more than tendays, other than a hazardous secondary material generator or reclaimerof such material.
(100) [(99)] International shipment--Thetransportation of hazardous waste into or out of the jurisdictionof the United States.
(101) [(100)] Lamp--Has the definitionadopted under §335.261 of this title (relating to Universal Waste Rule).
(102) [(101)] Land-based unit--Whenused to describe recycling of hazardous secondary materials, an areawhere hazardous secondary materials are placed in or on the land beforerecycling. This definition does not include land-based production units.
(103) [(102)] Land treatmentfacility--A facility or part of a facility at which solid waste orhazardous waste is applied onto or incorporated into the soil surfaceand that is not a corrective action management unit; such facilitiesare disposal facilities if the waste will remain after closure.
(104) [(103)] Landfill--A disposalfacility or part of a facility where solid waste or hazardous wasteis placed in or on land and which is not a pile, a land treatmentfacility, a surface impoundment, an injection well, a salt dome formation,a salt bed formation, an underground mine, a cave, or a correctiveaction management unit.
(105) [(104)] Landfill cell--Adiscrete volume of a solid waste or hazardous waste landfill whichuses a liner to provide isolation of wastes from adjacent cells orwastes. Examples of landfill cells are trenches and pits.
(106) [(105)] Large quantitygenerator--A generator who generates any of the following amountsin a calendar month:
(A) greater than or equal to 1,000 kilograms (2,200pounds) of non-acute hazardous waste; or
(B) greater than 1 kilogram (2.2 pounds) of acute hazardouswaste listed in 40 Code of Federal Regulations (CFR) §261.31or §261.33(e); or
(C) greater than 100 kilograms (220 pounds) of anyresidue or contaminated soil, water, or other debris resulting fromthe cleanup of a spill, into or on any land or water, of any acutehazardous waste listed in 40 CFR §261.31 or §261.33(e).
(107) [(106)] Leachate--Any liquid,including any suspended components in the liquid, that has percolatedthrough or drained from solid waste or hazardous waste.
(108) [(107)] Leak-detectionsystem--A system capable of detecting the failure of either the primaryor secondary containment structure or the presence of a release ofsolid waste or hazardous waste or accumulated liquid in the secondarycontainment structure. Such a system must employ operational controls(e.g., daily visual inspections for releases into the secondary containmentsystem of aboveground tanks) or consist of an interstitial monitoringdevice designed to detect continuously and automatically the failureof the primary or secondary containment structure or the presenceof a release of solid waste or hazardous waste into the secondarycontainment structure.
(109) [(108)] Licensed professionalgeoscientist--A geoscientist who maintains a current license throughthe Texas Board of Professional Geoscientists in accordance with itsrequirements for professional practice.
(110) [(109)] Liner--A continuouslayer of natural or man-made materials, beneath or on the sides ofa surface impoundment, landfill, or landfill cell, which restrictsthe downward or lateral escape of solid waste or hazardous waste,hazardous waste constituents, or leachate.
(111) [(110)] Management or hazardouswaste management--The systematic control of the collection, sourceseparation, storage, transportation, processing, treatment, recovery,and disposal of solid waste or hazardous waste.
(112) [(111)] Manifest--The wasteshipping document, United States Environmental Protection Agency (EPA)Form 8700-22 (including, if necessary, EPA Form 8700-22A), or theelectronic manifest, originated and signed by the generator or offerorin accordance with the applicable requirements of this chapter and40 Code of Federal Regulations Parts 262 - 265.
(113) [(112)] Manifest trackingnumber--The alphanumeric identification number (i.e., a unique three-lettersuffix preceded by nine numerical digits), which is pre-printed inItem 4 of the manifest by a registered source.
(114) [(113)] Military munitions--Allammunition products and components produced or used by or for theDepartment of Defense (DOD) or the United States Armed Services fornational defense and security, including military munitions underthe control of the DOD, the United States Coast Guard, the UnitedStates Department of Energy (DOE), and National Guard personnel. Theterm "military munitions":
(A) includes confined gaseous, liquid, and solid propellants,explosives, pyrotechnics, chemical and riot control agents, smokes,and incendiaries used by DOD components, including bulk explosivesand chemical warfare agents, chemical munitions, rockets, guided andballistic missiles, bombs, warheads, mortar rounds, artillery ammunition,small arms ammunition, grenades, mines, torpedoes, depth charges,cluster munitions and dispensers, demolition charges, and devicesand components thereof; and
(B) includes non-nuclear components of nuclear devices,managed under DOE's nuclear weapons program after all required sanitizationoperations under the Atomic Energy Act of 1954, as amended, have beencompleted; but
(C) does not include wholly inert items, improvisedexplosive devices, and nuclear weapons, nuclear devices, and nuclearcomponents thereof.
(115) [(114)] Miscellaneous unit--Ahazardous waste management unit where hazardous waste is stored, processed,or disposed of and that is not a container, tank, surface impoundment,pile, land treatment unit, landfill, incinerator, boiler, industrialfurnace, underground injection well with appropriate technical standardsunder Chapter 331 of this title (relating to Underground InjectionControl), corrective action management unit, containment building,staging pile, or unit eligible for a research, development, and demonstrationpermit or under Chapter 305, Subchapter K of this title (relatingto Research, Development, and Demonstration Permits).
(116) [(115)] Movement--Thatsolid waste or hazardous waste transported to a facility in an individual vehicle.
(117) [(116)] Municipal hazardouswaste--A municipal solid waste or mixture of municipal solid wasteswhich has been identified or listed as a hazardous waste by the administratorof the United States Environmental Protection Agency.
(118) [(117)] Municipal solidwaste--Solid waste resulting from or incidental to municipal, community,commercial, institutional, and recreational activities; includinggarbage, rubbish, ashes, street cleanings, dead animals, abandonedautomobiles, and all other solid waste other than industrial waste.
(119) [(118)] New tank systemor new tank component--A tank system or component that will be usedfor the storage or processing of hazardous waste and for which installationhas commenced after July 14, 1986; except, however, for purposes of40 Code of Federal Regulations (CFR) §264.193(g)(2) (incorporatedby reference at §335.152(a)(8) of this title (relating to Standards))and 40 CFR §265.193(g)(2) (incorporated by reference at §335.112(a)(9)of this title (relating to Standards)), a new tank system is one forwhich construction commences after July 14, 1986. (See also "Existing tank system.")
(120) [(119)] No free liquids--Asused in 40 Code of Federal Regulations §261.4(a)(26) and (b)(18),means that solvent-contaminated wipes may not contain free liquidsas determined by Method 9095B (Paint Filter Liquids Test), includedin "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods"(EPA Publication SW-846), which is incorporated by reference at §335.31of this title (relating to Incorporation of References), and thatthere is no free liquid in the container holding the wipes.
(121) [(120)] Non-acute hazardouswaste--All hazardous wastes that are not acute hazardous waste, asdefined in this section.
(122) [(121)] Off-site--Propertywhich cannot be characterized as on-site.
(123) [(122)] Onground tank--Adevice meeting the definition of "Tank" in this section and that issituated in such a way that the bottom of the tank is on the samelevel as the adjacent surrounding surface so that the external tankbottom cannot be visually inspected.
(124) [(123)] On-Site--The sameor geographically contiguous property which may be divided by publicor private rights-of-way, provided the entrance and exit between theproperties is at a cross-roads intersection, and access is by crossing,as opposed to going along, the right-of-way. Noncontiguous propertiesowned by the same person but connected by a right-of-way which hecontrols and to which the public does not have access, is also consideredon-site property.
(125) [(124)] Open burning--Thecombustion of any material without the following characteristics:
(A) control of combustion air to maintain adequatetemperature for efficient combustion;
(B) containment of the combustion-reaction in an encloseddevice to provide sufficient residence time and mixing for completecombustion; and
(C) control of emission of the gaseous combustion products. (See also "Incinerator" and "Thermal processing.")
(126) [(125)] Operator--The personresponsible for the overall operation of a facility.
(127) [(126)] Owner--The personwho owns a facility or part of a facility.
(128) [(127)] Partial closure--Theclosure of a hazardous waste management unit in accordance with theapplicable closure requirements of Subchapters E and F of this chapter(relating to Interim Standards for Owners and Operators of HazardousWaste Treatment, Storage, or Disposal Facilities; and Permitting Standardsfor Owners and Operators of Hazardous Waste Treatment, Storage, orDisposal Facilities) at a facility that contains other active hazardouswaste management units. For example, partial closure may include theclosure of a tank (including its associated piping and underlyingcontainment systems), landfill cell, surface impoundment, waste pile,or other hazardous waste management unit, while other units of thesame facility continue to operate.
(129) [(128)] PCBs or polychlorinatedbiphenyl compounds--Compounds subject to 40 Code of Federal RegulationsPart 761.
(130) [(129)] Permit--A writtenpermit issued by the commission which, by its conditions, may authorizethe permittee to construct, install, modify, or operate a specifiedmunicipal hazardous waste or industrial solid waste treatment, storage,or disposal facility in accordance with specified limitations.
(131) [(130)] Personnel or facilitypersonnel--All persons who work at, or oversee the operations of,a solid waste or hazardous waste facility, and whose actions or failureto act may result in noncompliance with the requirements of this chapter.
(132) [(131)] Pesticide--Hasthe definition adopted under §335.261 of this title (relatingto Universal Waste Rule).
(133) [(132)] Petroleum substance--Acrude oil or any refined or unrefined fraction or derivative of crudeoil which is a liquid at standard conditions of temperature and pressure.
(A) Except as provided in subparagraph (C) of thisparagraph for the purposes of this chapter, a "Petroleum substance"shall be limited to a substance in or a combination or mixture ofsubstances within the following list (except for any listed substanceregulated as a hazardous waste under the federal Solid Waste DisposalAct, Subtitle C (42 United States Code (USC), §§6921, et seq.)) and which is liquid at standardconditions of temperature (20 degrees Centigrade) and pressure (1 atmosphere):
(i) basic petroleum substances--i.e., crude oils, crudeoil fractions, petroleum feedstocks, and petroleum fractions;
(ii) motor fuels--a petroleum substance which is typicallyused for the operation of internal combustion engines and/or motors(which includes, but is not limited to, stationary engines and enginesused in transportation vehicles and marine vessels);
(iii) aviation gasolines--i.e., Grade 80, Grade 100,and Grade 100-LL;
(iv) aviation jet fuels--i.e., Jet A, Jet A-1, JetB, JP-4, JP-5, and JP-8;
(v) distillate fuel oils--i.e., Number 1-D, Number1, Number 2-D, and Number 2;
(vi) residual fuel oils--i.e., Number 4-D, Number 4-light,Number 4, Number 5-light, Number 5-heavy, and Number 6;
(vii) gas-turbine fuel oils--i.e., Grade O-GT, Grade1-GT, Grade 2-GT, Grade 3-GT, and Grade 4-GT;
(viii) illuminating oils--i.e., kerosene, mineral sealoil, long-time burning oils, 300 oil, and mineral colza oil;
(ix) lubricants--i.e., automotive and industrial lubricants;
(x) building materials--i.e., liquid asphalt and dust-laying oils;
(xi) insulating and waterproofing materials--i.e.,transformer oils and cable oils; and
(xii) used oils--See definition for "Used oil" in this section.
(B) For the purposes of this chapter, a "Petroleumsubstance" shall include solvents or a combination or mixture of solvents(except for any listed substance regulated as a hazardous waste underthe federal Solid Waste Disposal Act, Subtitle C (42 USC, §§6921, et seq.)) and which is liquid at standardconditions of temperature (20 degrees Centigrade) and pressure (1atmosphere) i.e., Stoddard solvent, petroleum spirits, mineral spirits,petroleum ether, varnish makers' and painters' naphthas, petroleumextender oils, and commercial hexane.
(C) The following materials are not considered petroleum substances:
(i) polymerized materials, i.e., plastics, syntheticrubber, polystyrene, high and low density polyethylene;
(ii) animal, microbial, and vegetable fats;
(iii) food grade oils;
(iv) hardened asphalt and solid asphaltic materials--i.e.,roofing shingles, roofing felt, hot mix (and cold mix); and
(v) cosmetics.
(134) [(133)] Pile--Any noncontainerizedaccumulation of solid, nonflowing solid waste or hazardous waste thatis used for processing or storage, and that is not a corrective actionmanagement unit or a containment building.
(135) [(134)] Plasma arc incinerator--Anyenclosed device using a high intensity electrical discharge or arcas a source of heat followed by an afterburner using controlled flamecombustion and which is not listed as an industrial furnace.
(136) [(135)] Post-closure order--Anorder issued by the commission for post-closure care of interim statusunits, a corrective action management unit unless authorized by permit,or alternative corrective action requirements for contamination commingledfrom Resource Conservation and Recovery Act and solid waste management units.
(137) [(136)] Post-use polymers--Plastics: [Plastic polymers that derive from industrialsources or activities that would be classified as a nonhazardous industrialsolid waste if not converted into a valuable raw, intermediate, orfinal product. Post-use polymers include used polymers that containincidental contaminants or impurities such as paper labels or metalrings but do not include used polymers mixed with solid waste, medicalwaste, hazardous waste, electronic waste, tires, or construction ordemolition debris.]
(A) derived from any industrial, commercial,agricultural, or domestic activity, including preconsumer recoveredmaterials and postconsumer materials;
(B) that would be classified as nonhazardoussolid waste if discarded;
(C) that have been sorted from solidwaste and other regulated waste and may contain residual amounts oforganic material and incidental contaminants or impurities such aspaper labels or metal rings;
(D) not mixed with solid waste orhazardous waste on-site or while being processed at an advanced recycling facility;
(E) used or intended for use as a feedstock or for the production of feedstocks, raw materials, intermediate products, or final products using advanced recycling; and
(F) processed or held prior to being processed at an advanced recycling facility.
(138) [(137)] Poultry--Chickens or ducks being raised or kept on any premises in the state for profit.
(139) [(138)] Poultry carcass--The carcass, or part of a carcass, of poultry that died as a result of a cause other than intentional slaughter for use for human consumption.
(140) [(139)] Poultry facility--Afacility that:
(A) is used to raise, grow, feed, or otherwise producepoultry for commercial purposes; or
(B) is a commercial poultry hatchery that is used toproduce chicks or ducklings.
(141) [(140)] Processing--Theextraction of materials, transfer, volume reduction, conversion toenergy, or other separation and preparation of solid waste for reuseor disposal, including the treatment or neutralization of solid wasteor hazardous waste, designed to change the physical, chemical, orbiological character or composition of any solid waste or hazardouswaste so as to neutralize such waste, or so as to recover energy ormaterial from the waste or so as to render such waste nonhazardous,or less hazardous; safer to transport, store or dispose of; or amenablefor recovery, amenable for storage, or reduced in volume. The transferof solid waste for reuse or disposal as used in this definition doesnot include the actions of a transporter in conveying or transportingsolid waste by truck, ship, pipeline, or other means. Unless the executivedirector determines that regulation of such activity is necessaryto protect human health or the environment, the definition of "Processing"does not include activities relating to those materials exempted bythe administrator of the United States Environmental Protection Agencyin accordance with the federal Solid Waste Disposal Act, as amendedby the Resource Conservation and Recovery Act, 42 United States Code,§§6901 et seq., as amended.
(142) [(141)] Publicly-ownedtreatment works (POTW)--Any device or system used in the treatment(including recycling and reclamation) of municipal sewage or industrialwastes of a liquid nature which is owned by a state or municipality(as defined by the federal Clean Water Act, §502(4)). The definitionincludes sewers, pipes, or other conveyances only if they convey wastewaterto a POTW providing treatment.
(143) [(142)] Pyrolysis--A manufacturingprocess through which post-use polymers are heated in an oxygen-deficientatmosphere and the pyrolysis product is converted into valuableraw materials, valuable intermediate products, or valuable final products,which include plastic monomers, chemicals, naphtha, waxes, polymers,plastic feedstocks, or chemical feedstocks; and do not include crudeoil, diesel, gasoline, diesel blend stock, gasoline blend stock, homeheating oil, ethanol, or another fuel. [until melted andthermally decomposed and then cooled, condensed, and converted intoa valuable raw, intermediate, or final product, including a plastic,monomer, chemical, wax, lubricant, or chemical feedstock or crudeoil, diesel, gasoline, diesel and gasoline blendstock, home heatingoil, ethanol, or another fuel.]
[(143) Pyrolysis facility--A manufacturingfacility that receives, separates, stores, and converts post-use polymersusing pyrolysis.]
(144) Qualified groundwater scientist--A scientistor engineer who has received a baccalaureate or post-graduate degreein the natural sciences or engineering, and has sufficient trainingand experience in groundwater hydrology and related fields as maybe demonstrated by state registration, professional certifications,or completion of accredited university courses that enable that individualto make sound professional judgments regarding groundwater monitoringand contaminant fate and transport.
(145) Recognized trader--A person domiciled in theUnited States, by site of business, who acts to arrange and facilitatetransboundary movements of wastes destined for recovery or disposaloperations, either by purchasing from and subsequently selling toUnited States and foreign facilities, or by acting under arrangementswith a United States waste facility to arrange for the export or importof the wastes.
(146) Recoverable feedstock--One or more of the followingmaterials, derived from recoverable nonhazardous [industrialsolid] waste, other than coal refuse, that has been processedso that it may be used as feedstock in an "Advanced recyclingfacility" or through "Gasification" [a "Gasification facility"or "Pyrolysis facility"] as these terms are definedin this section:
(A) post-use polymers; [and]
(B) material, including municipal solid waste andother post-industrial waste: [containing post-use polymersand other post-industrial waste containing post-use polymers, thathas been processed into a fuel or feedstock for which the commissionor the United States Environmental Protection Agency has made a non-wastedetermination under 40 Code of Federal Regulations §241.3(c),as amended through February 8, 2016 (81 FR 6742).]
(i) for which the commission or theUnited States Environmental Protection Agency has made a non-wastedetermination under 40 Code of Federal Regulations §241.3(c); or
(ii) that the commission or the UnitedStates Environmental Protection Agency has otherwise determined arefeedstocks and not solid waste; and
(C) excluding fuels.
(147) Regional administrator--The regional administratorfor the United States Environmental Protection Agency region in whichthe facility is located, or his designee.
(148) Remanufacturing--Processing a higher-value hazardoussecondary material in order to manufacture a product that serves asimilar functional purpose as the original commercial-grade material.For the purpose of this definition, a hazardous secondary materialis considered higher-value if it was generated from the use of a commercial-gradematerial in a manufacturing process and can be remanufactured intoa similar commercial-grade material.
(149) Remediation--The act of eliminating or reducingthe concentration of contaminants in contaminated media.
(150) Remediation waste--All solid and hazardous wastes,and all media (including groundwater, surface water, soils, and sediments)and debris, which contain listed hazardous wastes or which themselvesexhibit a hazardous waste characteristic, that are managed for thepurpose of implementing corrective action requirements under §335.167of this title (relating to Corrective Action for Solid Waste ManagementUnits) and Texas Water Code, §7.031 (Corrective Action Relatingto Hazardous Waste). For a given facility, remediation wastes mayoriginate only from within the facility boundary, but may includewaste managed in implementing corrective action for releases beyondthe facility boundary under §335.166(5) of this title (relatingto Corrective Action Program) or §335.167(c) of this title.
(151) Remove--To take waste, contaminated design oroperating system components, or contaminated media away from a wastemanagement unit, facility, or area to another location for treatment,storage, or disposal.
(152) Replacement unit--A landfill, surface impoundment,or waste pile unit:
(A) from which all or substantially all the waste isremoved; and
(B) that is subsequently reused to treat, store, ordispose of hazardous waste. "Replacement unit" does not apply to aunit from which waste is removed during closure, if the subsequentreuse solely involves the disposal of waste from that unit and otherclosing units or corrective action areas at the facility, in accordancewith an approved closure plan or United States Environmental ProtectionAgency or state approved corrective action.
(153) Representative sample--A sample of a universeor whole (e.g., waste pile, lagoon, groundwater) which can be expectedto exhibit the average properties of the universe or whole.
(154) Run-off--Any rainwater, leachate, or other liquidthat drains over land from any part of a facility.
(155) Run-on--Any rainwater, leachate, or other liquidthat drains over land onto any part of a facility.
(156) Saturated zone or zone of saturation--That partof the earth's crust in which all voids are filled with water.
(157) Shipment--Any action involving the conveyanceof municipal hazardous waste or industrial solid waste by any means off-site.
(158) Sludge dryer--Any enclosed thermal treatmentdevice that is used to dehydrate sludge and that has a maximum totalthermal input, excluding the heating valve of the sludge itself, of2,500 British thermal units per pound of sludge treated on a wet-weight basis.
(159) Small quantity generator--A generator who generatesthe following amounts in a calendar month:
(A) greater than 100 kilograms (220 pounds) but lessthan 1,000 kilograms (2,200 pounds) of non-acute hazardous waste;
(B) less than or equal to 1 kilogram (2.2 pounds) ofacute hazardous waste listed in 40 Code of Federal Regulations (CFR)§261.31 or §261.33(e); and
(C) less than or equal to 100 kilograms (220 pounds)of any residue or contaminated soil, water, or other debris resultingfrom the cleanup of a spill, into or on any land or water, of anyacute hazardous waste listed in 40 CFR §261.31 or §261.33(e).
(160) Solid waste--
(A) Any garbage, refuse, sludge from a waste treatmentplant, water supply treatment plant or air pollution control facility,and other discarded material, including solid, liquid, semisolid,or contained gaseous material resulting from industrial, municipal,commercial, mining, and agricultural operations, and from communityand institutional activities, but does not include:
(i) solid or dissolved material in domestic sewage,or solid or dissolved material in irrigation return flows, or industrialdischarges subject to regulation by permit issued in accordance withTexas Water Code, Chapter 26 (an exclusion applicable only to theactual point source discharge that does not exclude industrial wastewaterswhile they are being collected, stored, or processed before discharge,nor does it exclude sludges that are generated by industrial wastewater treatment);
(ii) uncontaminated soil, dirt, rock, sand, and othernatural or man-made inert solid materials used to fill land if theobject of the fill is to make the land suitable for the constructionof surface improvements. The material serving as fill may also serveas a surface improvement such as a structure foundation, a road, soilerosion control, and flood protection. Man-made materials exemptedunder this provision shall only be deposited at sites where the constructionis in progress or imminent such that rights to the land are securedand engineering, architectural, or other necessary planning have beeninitiated. Waste disposal shall be considered to have occurred onany land which has been filled with man-made inert materials underthis provision if the land is sold, leased, or otherwise conveyedprior to the completion of construction of the surface improvement.Under such conditions, deed recordation shall be required. The deedrecordation shall include the information required under §335.5(a)of this title (relating to Deed Recordation of Waste Disposal), priorto sale or other conveyance of the property;
(iii) waste materials which result from "Activitiesassociated with the exploration, development, or production of oilor gas or geothermal resources," as those activities are defined inthis section, and any other substance or material regulated by theRailroad Commission of Texas in accordance with the Texas NaturalResources Code, §91.101, unless such waste, substance, or materialresults from activities associated with gasoline plants, natural gas,or natural gas liquids processing plants, pressure maintenance plants,or repressurizing plants and is a hazardous waste as defined by theadministrator of the United States Environmental Protection Agency(EPA) in accordance with the federal Solid Waste Disposal Act, 42United States Code, §§6901 et seq., as amended;
(iv) a material excluded by 40 Code of Federal Regulations(CFR) §§261.4(a), 261.39, or 261.40, as adopted under §335.504of this title (relating to Hazardous Waste Determination), subjectto the changes in this clause, by variance, or by non-waste determinationgranted under §335.18 of this title (relating to Non-Waste Determinationsand Variances from Classification as a Solid Waste), §335.19of this title (relating to Standards and Criteria for Variances fromClassification as a Solid Waste), §335.21 of this title (relatingto Procedures for Variances from Classification as a Solid Waste orTo Be Classified as a Boiler or for Non-Waste Determinations), and§335.32 of this title (relating to Standards and Criteria forNon-Waste Determinations). For the purposes of the exclusions under40 CFR §261.39 and §261.40, 40 CFR §261.41 is adoptedby reference under §335.504 of this title; or
(v) recoverable feedstocks including post-usepolymers that are processed through pyrolysis, gasification, solvolysis,or depolymerization at an advanced recycling facility where the owneror operator keeps records on-site in accordance with subparagraph(I) of this paragraph demonstrating: that the primary function ofthe facility is to convert recoverable feedstocks into valuable rawmaterials, valuable intermediate products, or valuable final productsfor subsequent beneficial use; and that solid waste generated fromconverting materials has been disposed of at an authorized solid wastemanagement facility. [that are processed through pyrolysisor gasification at a pyrolysis facility or gasification facility,where the primary function of the facility is to convert recoverablefeedstocks into materials that have a resale value greater than thecost of processing the recoverable feedstock for subsequent beneficialuse and where solid waste generated from converting recoverable feedstockis disposed of at an authorized solid waste management facility.]
(B) A discarded material is any material which is:
(i) abandoned, as explained in subparagraph (C) ofthis paragraph;
(ii) recycled, as explained in subparagraph (D) ofthis paragraph;
(iii) considered inherently waste-like, as explainedin subparagraph (E) of this paragraph; or
(iv) a military munition identified as a solid wastein 40 CFR §266.202.
(C) Materials are solid wastes if they are abandonedby being:
(i) disposed of;
(ii) burned or incinerated;
(iii) accumulated, stored, or processed (but not recycled)before or in lieu of being abandoned by being disposed of, burned,or incinerated; or
(iv) sham recycling as explained in subparagraph (J)of this paragraph.
(D) Except for materials described in subparagraph(H) of this paragraph, materials are solid wastes if they are "recycled"or accumulated, stored, or processed before recycling as specifiedin this subparagraph. The chart referred to as Table 1 in Figure:30 TAC §335.1(160)(D)(iv) indicates only which materials areconsidered to be solid wastes when they are recycled and is not intendedto supersede the definition of "Solid waste" provided in subparagraph(A) of this paragraph.
(i) Used in a manner constituting disposal. Materialsnoted with an asterisk in Column 1 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv)are solid wastes when they are:
(I) applied to or placed on the land in a manner thatconstitutes disposal; or
(II) used to produce products that are applied to orplaced on the land or are otherwise contained in products that areapplied to or placed on the land (in which cases the product itselfremains a solid waste). However, commercial chemical products listedin 40 CFR §261.33 are not solid wastes if they are applied tothe land and that is their ordinary manner of use.
(ii) Burning for energy recovery. Materials noted withan asterisk in Column 2 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv)are solid wastes when they are:
(I) burned to recover energy; or
(II) used to produce a fuel or are otherwise containedin fuels (in which cases the fuel itself remains a solid waste). However,commercial chemical products, which are listed in 40 CFR §261.33,not listed in §261.33, but that exhibit one or more of the hazardouswaste characteristics, or will be considered nonhazardous waste ifdisposed, are not solid wastes if they are fuels themselves and burnedfor energy recovery.
(iii) Reclaimed. Materials noted with an asterisk inColumn 3 of Table 1 are solid wastes when reclaimed (unless they meetthe requirements of 40 CFR §261.4(a)(17), (23), (24), or (27)).Materials without an asterisk in Column 3 of Table 1 in Figure: 30TAC §335.1(160)(D)(iv) are not solid wastes when reclaimed.
(iv) Accumulated speculatively. Materials noted withan asterisk in Column 4 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv)are solid wastes when accumulated speculatively.
Figure: 30 TAC §335.1(160)(D)(iv) (No change.)
(E) Materials that are identified by the administratorof the EPA as inherently waste-like materials under 40 CFR §261.2(d)are solid wastes when they are recycled in any manner.
(F) Materials are not solid wastes when they can beshown to be recycled by being:
(i) used or reused as ingredients in an industrialprocess to make a product, provided the materials are not being reclaimed;
(ii) used or reused as effective substitutes for commercial products;
(iii) returned to the original process from which theywere generated, without first being reclaimed or land disposed. Thematerial must be returned as a substitute for feedstock materials.In cases where the original process to which the material is returnedis a secondary process, the materials must be managed such that thereis no placement on the land. In cases where the materials are generatedand reclaimed within the primary mineral processing industry, theconditions of the exclusion found at 40 CFR §261.4(a)(17) applyrather than this provision; or
(iv) secondary materials that are reclaimed and returnedto the original process or processes in which they were generatedwhere they are reused in the production process provided:
(I) only tank storage is involved, and the entire processthrough completion of reclamation is closed by being entirely connectedwith pipes or other comparable enclosed means of conveyance;
(II) reclamation does not involve controlled flamecombustion (such as occurs in boilers, industrial furnaces, or incinerators);
(III) the secondary materials are never accumulatedin such tanks for over 12 months without being reclaimed; and
(IV) the reclaimed material is not used to producea fuel, or used to produce products that are used in a manner constituting disposal.
(G) Except for materials described in subparagraph(H) of this paragraph, the following materials are solid wastes, evenif the recycling involves use, reuse, or return to the original process,as described in subparagraph (F) of this paragraph:
(i) materials used in a manner constituting disposal,or used to produce products that are applied to the land;
(ii) materials burned for energy recovery, used toproduce a fuel, or contained in fuels;
(iii) materials accumulated speculatively; or
(iv) materials deemed to be inherently waste-like bythe administrator of the EPA, as described in 40 CFR §261.2(d)(1)and (2).
(H) With the exception of contaminated soils whichare being relocated for use under §350.36 of this title (relatingto Relocation of Soils Containing Chemicals of Concern for Reuse Purposes)and other contaminated media, materials that will otherwise be identifiedas nonhazardous solid wastes if disposed of are not considered solidwastes when recycled by being applied to the land or used as ingredientsin products that are applied to the land, provided these materialscan be shown to meet all of the following criteria:
(i) a legitimate market exists for the recycling materialas well as its products;
(ii) the recycling material is managed and protectedfrom loss as will be raw materials or ingredients or products;
(iii) the quality of the product is not degraded bysubstitution of raw material/product with the recycling material;
(iv) the use of the recycling material is an ordinaryuse and it meets or exceeds the specifications of the product it isreplacing without treatment or reclamation, or if the recycling materialis not replacing a product, the recycling material is a legitimateingredient in a production process and meets or exceeds raw materialspecifications without treatment or reclamation;
(v) the recycling material is not burned for energyrecovery, used to produce a fuel, or contained in a fuel;
(vi) the recycling material can be used as a productit*elf or to produce products as it is generated without treatmentor reclamation;
(vii) the recycling material must not present an increasedrisk to human health, the environment, or waters in the state whenapplied to the land or used in products which are applied to the landand the material, as generated:
(I) is a Class 3 waste under Subchapter R of this chapter(relating to Waste Classification), except for arsenic, cadmium, chromium,lead, mercury, nickel, selenium, and total dissolved solids; and
(II) for the metals listed in subclause (I) of this clause:
(-a-) is a Class 2 or Class 3 waste under SubchapterR of this chapter; and
(-b-) does not exceed a concentration limit under §312.43(b)(3),Table 3 of this title (relating to Metal Limits); and
(viii) with the exception of the requirements under§335.17(a)(8) of this title (relating to Special Definitionsfor Recyclable Materials and Nonhazardous Recyclable Materials):
(I) at least 75% (by weight or volume) of the annualproduction of the recycling material must be recycled or transferredto a different site and recycled on an annual basis; and
(II) if the recycling material is placed in protectivestorage, such as a silo or other protective enclosure, at least 75%(by weight or volume) of the annual production of the recycling materialmust be recycled or transferred to a different site and recycled ona biennial basis.
(I) Respondents in actions to enforce the industrialsolid waste regulations and facility operators who raise a claim thata certain material is not a solid waste, or is conditionally exemptfrom regulation, must demonstrate that there is a known market ordisposition for the material, and that they meet the terms of theexclusion or exemption. In doing so, they must provide appropriatedocumentation (such as contracts showing that a second person usesthe material as an ingredient in a production process) to demonstratethat the material is not a waste, or is exempt from regulation. Inaddition, owners or operators of facilities claiming that they actuallyare recycling materials must show that they have the necessary equipmentto do so and that the recycling activity is legitimate and beneficial.
(J) A hazardous secondary material found to be shamrecycled is considered discarded and a solid waste. Sham recyclingis recycling that is not legitimate recycling as defined in §335.27of this title (relating to Legitimate Recycling of Hazardous Secondary Materials).
(K) Materials that are reclaimed from solid wastesand that are used beneficially are not solid wastes and hence arenot hazardous wastes under 40 CFR §261.3(c) unless the reclaimedmaterial is burned for energy recovery or used in a manner constituting disposal.
(L) Other portions of this chapter that relate to solidwastes that are recycled include §335.6 of this title (relatingto Notification Requirements), §§335.17 - 335.19 of thistitle, §335.24 of this title (relating to Requirements for RecyclableMaterials and Nonhazardous Recyclable Materials), and Subchapter Hof this chapter (relating to Standards for the Management of SpecificWastes and Specific Types of Facilities).
(M) Steel slag may not be considered as solid wasteif the steel slag is an intended output or result of the use of anelectric arc furnace to make steel, introduced into the stream ofcommerce, and managed as an item of commercial value, including througha controlled use in a manner constituting disposal, and not as discarded material.
(N) Foundry sand from the iron and steel casting industrymay not be considered as solid waste if the sand is an intended outputor result of the use of an iron or steel casting process to make castiron and steel products, introduced into the stream of commerce, andmanaged as an item of commercial value, including through a controlleduse in a manner constituting disposal, and not as discarded material.
(161) Solvent-contaminated wipe--A wipe that, afteruse or after cleaning up a spill, either:
(A) contains one or more of the F001 through F005 solventslisted in 40 Code of Federal Regulations (CFR) §261.31 or thecorresponding P- or U-listed solvents found in 40 CFR §261.33;
(B) exhibits a hazardous characteristic found in 40CFR Part 261, Subpart C, when that characteristic results from a solventlisted in 40 CFR Part 261; and/or
(C) exhibits only the hazardous waste characteristicof ignitability found in 40 CFR §261.21 due to the presence ofone or more solvents that are not listed in 40 CFR Part 261. Solvent-contaminatedwipes that contain listed hazardous waste other than solvents, orexhibit the characteristic of toxicity, corrosivity, or reactivitydue to contaminants other than solvents, are not eligible for theexclusions at 40 CFR §261.4(a)(26) and (b)(18).
(162) Solvolysis--A manufacturingprocess that includes hydrolysis, aminolysis, ammonolysis, methanolysis,and/or glycolysis through which post-use polymers are purified withthe aid of solvents while heated at low temperatures, pressurized,or both heated at low temperatures and pressurized, to remove additivesand contaminants and make useful products, which include monomers,intermediates, valuable chemicals, plastic feedstocks, chemical feedstocks,and raw materials; and do not include crude oil, diesel, gasoline,diesel blend stock, gasoline blend stock, home heating oil, ethanol,or another fuel.
(163) [(162)] Sorbent--A materialthat is used to soak up free liquids by either adsorption or absorption,or both. Sorb means to either adsorb or absorb, or both.
(164) [(163)] Spill--The accidentalspilling, leaking, pumping, emitting, emptying, or dumping of solidwaste or hazardous wastes or materials which, when spilled, becomesolid waste or hazardous wastes into or on any land or water.
(165) [(164)] Staging pile--Anaccumulation of solid, non-flowing "Remediation waste," as definedin this section, that is not a containment building and that is usedonly during remedial operations for temporary storage at a facility.Staging piles must be designated by the executive director accordingto the requirements of 40 Code of Federal Regulations §264.554,as adopted by reference under §335.152(a) of this title (relatingto Standards).
(166) [(165)] Standard permit--AResource Conservation and Recovery Act permit authorizing managementof hazardous waste issued under Chapter 305, Subchapter R of thistitle (relating to Resource Conservation and Recovery Act StandardPermits for Storage and Treatment Units) and Subchapter U of thischapter (relating to Standards for Owners and Operators of HazardousWaste Facilities Operating Under a Standard Permit). The standardpermit may have two parts, a uniform portion issued in all cases anda supplemental portion issued at the executive director's discretion.
(167) [(166)] Storage--The holdingof solid waste for a temporary period, at the end of which the wasteis processed, disposed of, recycled, or stored elsewhere.
(168) [(167)] Sump--Any pit orreservoir that meets the definition of "Tank" in this section andthose troughs/trenches connected to it that serve to collect solidwaste or hazardous waste for transport to solid waste or hazardouswaste treatment, storage, or disposal facilities; except that as usedin the landfill, surface impoundment, and waste pile rules, "sump"means any lined pit or reservoir that serves to collect liquids drainedfrom a leachate collection and removal system or leak detection systemfor subsequent removal from the system.
(169) [(168)] Surface impoundmentor impoundment--A facility or part of a facility which is a naturaltopographic depression, man-made excavation, or diked area formedprimarily of earthen materials (although it may be lined with man-madematerials), which is designed to hold an accumulation of liquid wastesor wastes containing free liquids, and which is not an injection wellor a corrective action management unit. Examples of surface impoundmentsare holding, storage, settling, and aeration pits, ponds, and lagoons.
(170) [(169)] Tank--A stationarydevice, designed to contain an accumulation of solid waste which isconstructed primarily of non-earthen materials (e.g., wood, concrete,steel, plastic) which provide structural support.
(171) [(170)] Tank system--Asolid waste or hazardous waste storage or processing tank and itsassociated ancillary equipment and containment system.
(172) [(171)] TEQ--Toxicity equivalence,the international method of relating the toxicity of various dioxin/furancongeners to the toxicity of 2,3,7,8-tetrachlorodibenzo-p-dioxin.
(173) [(172)] Thermal processing--Theprocessing of solid waste or hazardous waste in a device which useselevated temperatures as the primary means to change the chemical,physical, or biological character or composition of the solid wasteor hazardous waste. Examples of thermal processing are incineration,molten salt, pyrolysis, calcination, wet air oxidation, and microwavedischarge. (See also "Incinerator"and "Open burning.")
(174) [(173)] Thermostat--Hasthe definition adopted under §335.261 of this title (relatingto Universal Waste Rule).
(175) [(174)] Totally enclosedtreatment facility--A facility for the processing of hazardous wastewhich is directly connected to an industrial production process andwhich is constructed and operated in a manner which prevents the releaseof any hazardous waste or any constituent thereof into the environmentduring processing. An example is a pipe in which acid waste is neutralized.
(176) [(175)] Transfer facility--Anytransportation-related facility including loading docks, parking areas,storage areas, and other similar areas where shipments of hazardousor industrial solid waste or hazardous secondary materials are heldduring the normal course of transportation.
(177) [(176)] Transport vehicle--Amotor vehicle or rail car used for the transportation of cargo byany mode. Each cargo-carrying body (trailer, railroad freight car,etc.) is a separate transport vehicle. Vessel includes every descriptionof watercraft, used or capable of being used as a means of transportationon the water.
(178) [(177)] Transporter--Anyperson who conveys or transports municipal hazardous waste or industrialsolid waste by truck, ship, pipeline, or other means.
(179) [(178)] Treatability study--Astudy in which a hazardous or industrial solid waste is subjectedto a treatment process to determine:
(A) whether the waste is amenable to the treatment process;
(B) what pretreatment (if any) is required;
(C) the optimal process conditions needed to achievethe desired treatment;
(D) the efficiency of a treatment process for a specificwaste or wastes; or
(E) the characteristics and volumes of residuals froma particular treatment process. Also included in this definition forthe purpose of the exemptions under 40 Code of Federal Regulations§261.4(e) and (f) and §335.2 of this title (relating toPermit Required) are liner compatibility, corrosion, and other materialcompatibility studies and toxicological and health effects studies.A treatability study is not a means to commercially treat or disposeof hazardous or industrial solid waste.
(180) [(179)] Treatment--To applya physical, biological, or chemical process(es) to wastes and contaminatedmedia which significantly reduces the toxicity, volume, or mobilityof contaminants and which, depending on the process(es) used, achievesvarying degrees of long-term effectiveness.
(181) [(180)] Treatment zone--Asoil area of the unsaturated zone of a land treatment unit withinwhich hazardous constituents are degraded, transferred, or immobilized.
(182) [(181)] Underground injection--Thesubsurface emplacement of fluids through a bored, drilled, or drivenwell; or through a dug well, where the depth of the dug well is greaterthan the largest surface dimension. (See also "Injection well.")
(183) [(182)] Underground tank--Adevice meeting the definition of "Tank" in this section whose entiresurface area is totally below the surface of and covered by the ground.
(184) [(183)] Unfit-for-use tanksystem--A tank system that has been determined through an integrityassessment or other inspection to be no longer capable of storingor processing solid waste or hazardous waste without posing a threatof release of solid waste or hazardous waste to the environment.
(185) [(184)] United States EnvironmentalProtection Agency (EPA) hazardous waste number--The number assignedby the EPA to each hazardous waste listed in 40 Code of Federal Regulations(CFR) Part 261, Subpart D and to each characteristic identified in40 CFR Part 261, Subpart C.
(186) [(185)] United States EnvironmentalProtection Agency (EPA) identification number--The number assignedby the EPA or the commission to each generator, transporter, and processing,storage, or disposal facility.
(187) [(186)] Universal waste--Anyof the hazardous wastes defined as universal waste under §335.261(b)(19)(F)of this title (relating to Universal Waste Rule) that are managedunder the universal waste requirements of Subchapter H, Division 5of this chapter (relating to Universal Waste Rule).
(188) [(187)] Universal wastehandler--Has the definition adopted as "Large quantity handler ofuniversal waste" and "Small quantity handler of universal waste" under§335.261 of this title (relating to Universal Waste Rule).
(189) [(188)] Universal wastetransporter--Has the definition adopted under 40 Code of Federal Regulations §273.9.
(190) [(189)] Unsaturated zoneor zone of aeration--The zone between the land surface and the water table.
(191) [(190)] Uppermost aquifer--Thegeologic formation nearest the natural ground surface that is an aquifer,as well as lower aquifers that are hydraulically interconnected withinthe facility's property boundary.
(192) [(191)] Used oil--Any oilthat has been refined from crude oil, or any synthetic oil, that hasbeen used, and, as a result of such use, is contaminated by physicalor chemical impurities. Used oil fuel includes any fuel produced fromused oil by processing, blending, or other treatment. Rules applicableto nonhazardous used oil, oil characteristically hazardous from useversus mixing, very small quantity generator hazardous used oil, andhousehold used oil after collection that will be recycled are foundin Chapter 324 of this title (relating to Used Oil Standards) and40 Code of Federal Regulations Part 279 (Standards for Managementof Used Oil).
(193) [(192)] User of the electronicmanifest system--A hazardous waste generator, a hazardous waste transporter,an owner or operator of a hazardous waste treatment, storage, recycling,or disposal facility, or any other person that:
(A) is required to use a manifest to comply with:
(i) any federal or state requirement to track the shipment,transportation, and receipt of hazardous waste or other waste materialthat is shipped from the site of generation to an off-site designatedfacility for treatment, storage, recycling, or disposal; or
(ii) any federal or state requirement to track theshipment, transportation, and receipt of rejected wastes or regulatedcontainer residues that are shipped from a designated facility toan alternative facility, or returned to the generator; and
(B) elects to use the system to obtain, complete andtransmit an electronic manifest format supplied by the United StatesEnvironmental Protection Agency electronic manifest system; or
(C) elects to use the paper manifest form and submitsto the system for data processing purposes a paper copy of the manifest(or data from such a paper copy), in accordance with 40 Code of FederalRegulations (CFR) §264.71(a)(2)(v) as adopted under §335.152of this title (relating to Standards) or 40 CFR §265.71(a)(2)(v)as adopted under §335.112 of this title (relating to Standards).These paper copies are submitted for data exchange purposes only andare not the official copies of record for legal purposes.
(194) [(193)] Very small quantitygenerator--A generator who generates less than or equal to the followingamounts in a calendar month:
(A) 100 kilograms (220 pounds) of non-acute hazardouswaste; and
(B) 1 kilogram (2.2 pounds) of acute hazardous wastelisted in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e); and
(C) 100 kilograms (220 pounds) of any residue or contaminatedsoil, water, or other debris resulting from the cleanup of a spill,into or on any land or water, of any acute hazardous waste listedin 40 CFR §261.31 or §261.33(e).
(195) [(194)] Wastewater treatmentunit--A device which:
(A) is part of a wastewater treatment facility subjectto regulation under either the Federal Water Pollution Control Act(federal Clean Water Act), 33 United States Code, §§466 et seq., §402 or §307(b), as amended;
(B) receives and processes or stores an influent wastewaterwhich is a hazardous or industrial solid waste, or generates and accumulatesa wastewater treatment sludge which is a hazardous or industrial solidwaste, or processes or stores a wastewater treatment sludge whichis a hazardous or industrial solid waste; and
(C) meets the definition of "Tank" or "Tank system"as defined in this section.
(196) [(195)] Water (bulk shipment)--Thebulk transportation of municipal hazardous waste or Class 1 industrialsolid waste which is loaded or carried on board a vessel without containersor labels.
(197) [(196)] Well--Any shaftor pit dug or bored into the earth, generally of a cylindrical form,and often walled with bricks or tubing to prevent the earth from caving in.
(198) [(197)] Wipe--A woven ornon-woven shop towel, rag, pad, or swab made of wood pulp, fabric,cotton, polyester blends, or other material.
(199) [(198)] Zone of engineeringcontrol--An area under the control of the owner/operator that, upondetection of a solid waste or hazardous waste release, can be readilycleaned up prior to the release of solid waste or hazardous wasteor hazardous constituents to groundwater or surface water.
The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402106
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER G. LOCATION STANDARDS FOR HAZARDOUS WASTE STORAGE, PROCESSING, OR DISPOSALStatutory Authority
The amendment is proposed under the authority of Texas Water Code(TWC), §5.013, which establishes the general jurisdiction ofthe commission; TWC, §5.102, which provides the commission withthe authority to carry out its duties and general powers under itsjurisdictional authority as provided by TWC; TWC, §5.103, whichrequires the commission to adopt any rule necessary to carry out itspowers and duties under TWC and other laws of the state; TWC, §5.105,which authorizes the commission to establish and approve all generalpolicy of the commission by rule; Texas Health and Safety Code (THSC),§361.011, which grants the commission authority over municipalsolid waste; THSC, §361.017, which grants the commission jurisdictionover industrial solid waste and hazardous municipal waste; THSC, §361.024,which authorizes the commission to adopt rules consistent with thegeneral purposes of the Solid Waste Disposal Act; and THSC, §361.078which identifies that THSC Chapter 361 Subchapter B does not abridge,modify or restrict the commission's authority to adopt rules issuepermits and enforce the terms of permits as necessary to maintainstate authorization of Texas' hazardous waste program; and THSC, §361.119,which requires the commission to adopt rules and to adopt rules consistentwith THSC, Chapter 361 to ensure that solid waste processing facilitiesare regulated as solid waste facilities and not allowed to operateunregulated as recycling facilities; and Texas Government Code, §2001.021,which requires the commission by rule to prescribe the form and procedurefor the submission, consideration, and disposition of a request madeby an interested person to the commission to adopt a rule.
The proposed amendment implements House Bill 3060, 88th Texas Legislature,2023, and Texas Government Code, §2001.021.
§335.206.Petitions for Rulemaking.
Local governments may petition the commission for a rule whichrestricts or prohibits the siting of a new hazardous waste managementfacility in areas including, but not limited to, those meeting oneor more of the characteristics delineated in Texas Health and SafetyCode, [,] §361.022, and §335.204 of this title(relating to Unsuitable Site Characteristics). Such petitions shallbe submitted in writing and shall comply with the requirements of §20.15 [§275.78] of this title (relating to Petitionfor Adoption of Rules). No rule adopted by the commission under thissection shall affect the siting of a new hazardous waste managementfacility if an application or a notice of intent to file an applicationwith respect to such facility has been filed with the commission priorto the filing of a petition under this section.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402107
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
SUBCHAPTER J. HAZARDOUS WASTE GENERATION, FACILITY AND DISPOSAL FEE SYSTEMStatutory Authority
The amendments are proposed under the authority of Texas WaterCode (TWC), §5.013, which establishes the general jurisdictionof the commission; TWC, §5.102, which provides the commissionwith the authority to carry out its duties and general powers underits jurisdictional authority as provided by TWC; TWC, §5.103,which requires the commission to adopt any rule necessary to carryout its powers and duties under TWC and other laws of the state; TWC,§5.105, which authorizes the commission to establish and approveall general policy of the commission by rule; Texas Health and SafetyCode (THSC), §361.011, which grants the commission authorityover municipal solid waste; THSC, §361.017, which grants thecommission jurisdiction over industrial solid waste and hazardousmunicipal waste; THSC, §361.024, which authorizes the commissionto adopt rules consistent with the general purposes of the Solid WasteDisposal Act; and THSC, §361.078 which identifies that THSC Chapter361 Subchapter B does not abridge, modify or restrict the commission'sauthority to adopt rules issue permits and enforce the terms of permitsas necessary to maintain state authorization of Texas' hazardous wasteprogram; and THSC, §361.119, which requires the commission toadopt rules and to adopt rules consistent with THSC Chapter 361 toensure that solid waste processing facilities are regulated as solidwaste facilities and not allowed to operate unregulated as recycling facilities.
The proposed amendments implement House Bill 3060, 88th Texas Legislature,2023. The provisions regarding the conditional exemption from permittingrequirements for hazardous waste generators were readopted in 30 TAC§335.53 in accordance with a state rule reorganization project(47 TexReg 318) necessitated by the federal reorganization of 40 Codeof Federal Regulations Part 262 associated with the federal HazardousWaste Generator Improvements Rule (81 FR 85732).
§335.325.Industrial Solid Waste and Hazardous Waste Management Fee Assessment.
(a) A fee is hereby assessed on each owner or operatorof a waste storage, processing, or disposal facility, except as providedin subsections (b) - (e) of this section. A fee is assessed for hazardouswastes which are stored, processed, disposed, or otherwise managedand for Class 1 industrial wastes which are disposed at a commercialfacility. For the purpose of this section, the storage, processing,or disposal of hazardous waste for which no permit is required under§335.2 of this title (relating to Permit Required) or §335.41of this title (relating to Purpose, Scope and Applicability) is notsubject to a hazardous waste management fee.
(b) A fee imposed on the owner or operator of a commercialhazardous waste storage, processing, or disposal facility for hazardouswastes which are generated in this state and received from an affiliateor wholly owned subsidiary of the commercial facility, or from a capturedfacility, shall be the same fee imposed on a noncommercial facility.For the purpose of this section, an affiliate of a commercial hazardouswaste facility must have a controlling interest in common with that facility.
(c) The storage, processing, or disposal of industrialsolid waste or hazardous wastes generated in a removal or remedialaction accomplished through the expenditure of public funds from thehazardous and solid waste remediation fee fund shall be exempt fromthe assessment of a waste management fee under this section.
(d) A fee shall not be imposed on the owner or operatorof a waste storage, processing, or disposal facility for the storageof hazardous wastes if such wastes are stored in compliance withthe conditions for exemption for a small quantity generator in 40Code of Federal Regulations (CFR) §262.16 or the conditions forexemption for a large quantity generator in 40 CFR §262.17 asadopted in §335.53 of this title (relating to General StandardsApplicable to Generators of Hazardous Waste) [within thetime periods allowed by and in accordance with the provisions of §335.69of this title (relating to Accumulation Time)].
(e) A fee may not be imposed under this section onthe operation of a facility permitted under the Texas Water Code,Chapter 26, or the federal National Pollutant Discharge EliminationSystem program for wastes treated, processed, or disposed of in awastewater treatment system that discharges into surface waters ofthe state. For the purpose of this section, the management of a hazardouswaste in a surface impoundment which is not exempt from assessmentunder this subsection will be assessed the fee for processing undersubsection (j) of this section.
(f) The waste management fee authorized under thissection shall be based on the total weight or volume of a waste exceptfor wastes which are disposed of in an underground injection well,in which case the fee shall be based on the dry weight of the waste,measured in dry weight tons (dwt), as defined in §335.322 ofthis title (relating to Definitions) and §335.326 of this title(relating to Dry Weight Determination).
(g) The hazardous waste management fee for wastes generatedin this state shall not exceed $40 per ton for wastes which are landfilled.
(h) The operator of a waste storage, processing, ordisposal facility receiving industrial solid waste or hazardous wastefrom out-of-state generators shall be assessed the fee amount requiredon wastes generated in state plus an additional increment to be establishedby rule, except as provided in subsection (k) of this section.
(i) For the purposes of subsection (j) of this section,energy recovery means the burning or incineration of a hazardous wastefuel and fuel processing means the handling of a waste fuel, includingstorage and blending, prior to its disposal by burning.
(j) Except as provided in subsections (k) - (q) ofthis section, waste management fees shall be assessed up to the maximumfee according to the schedules in the tables in Figure: 30 TAC §335.325(j)(1)and (2) in this subsection.
(1) Table 1: Hazardous Waste Schedule.
Figure: 30 TAC §335.325(j)(1) (No change.)
(2) Table 2: Class 1 Nonhazardous Waste Schedule
Figure: 30 TAC §335.325(j)(2) (No change.)
(3) The executive director may adjust fees at or belowthe fee specified in the fee schedule, on an annual basis, and willnotify fee payers of the upcoming fee rate before the rates go into effect.
(k) For wastes which are generated out-of-state, thefee will be that specified in subsection (j) of this section, exceptthat the fee for the storage, processing, incineration, and disposalof hazardous waste fuels shall be the same for wastes generated out-of-stateand in-state.
(l) Except as provided in subsection (m) of this section,only one waste management fee shall be paid for a waste managed ata facility. In any instance where more than one fee could be appliedunder this section to a specific volume of waste, the higher of theapplicable fees will be assessed.
(m) A fee for storage of hazardous waste shall be assessedin addition to any fee for other waste management methods at a facility.No fee shall be assessed under this section for the storage of a hazardouswaste for a period of less than 90 days as determined from the dateof receipt or generation of the waste (or the effective date of thissection). The fee rate specified in the schedule under subsection(j) of this section shall apply to the quantity of waste in any monthwhich has been in storage for more than 90 days or the number forwhich an extension has been granted under 40 CFR §262.17(b)as adopted in §335.53(f) of this title [§335.69of this title].
(n) A facility which receives waste transferred fromanother facility shall pay any waste management fee applicable underthis section and shall not receive credit for any fee applied to themanagement of the waste at the facility of origin.
(o) The fee rate for incineration of aqueous wastescontaining 5.0% or less of total organic carbon will be 10% of thefee for incineration under the schedule in subsection (j) of this section.
(p) A commercial waste disposal facility receivingsolid waste not subject to assessment under this section shall payany assessment due under Chapter 330, Subchapter P of this title (relatingto Fees and Reporting). No fee for disposal of a solid waste underChapter 330, Subchapter P of this title, shall be assessed in additionto a fee for disposal under this section.
(q) An operator of a hazardous waste injection wellelecting to separately measure inorganic salts in the determinationof dry weight under the provisions of §335.326(c) of this titleshall pay a fee equivalent to 20% of the fee for underground injectionassessed in subsection (j) of this section for the components of thewaste stream determined to be inorganic salts.
§335.329.Records and Reports.
(a) Generators are required to:
(1) keep records of all hazardous waste and industrialsolid waste activities regarding the quantities generated, stored,processed, and disposed on-site or shipped off-site for storage, processingor disposal in accordance with the requirements of §335.9 ofthis title (relating to Recordkeeping and Annual Reporting ProceduresApplicable to Generators);
(2) keep records of the dry weight amount of each wastedesignated for disposal in an underground injection well and recordsof the amounts of any solidification agents, brine, or other authorizedmaterial added to a waste stream which may be excluded from the determinationof dry weight under §335.326 [§361.326]of this title (relating to Dry Weight Determination);
(3) provide each operator of an underground injectionwell a certificate of computation of the dry weight of a waste tobe disposed. For each off-site shipment, the dry weight amount ofeach hazardous waste to be disposed in an underground injection wellis to be recorded in Item J of the Uniform Hazardous Waste Manifestas required under §335.30 of this title (relating to AppendixI); and
(4) submit the appropriate reports required under §335.13(b)of this title (relating to Recordkeeping and Reporting ProceduresApplicable to Generators Shipping Hazardous Waste or Class 1 Wasteand Primary Exporters of Hazardous Waste) on forms furnished or approvedby the executive director.
(b) Owners or operators of waste storage, processing,or disposal facilities are required to:
(1) for on-site facilities, keep records of all hazardouswaste and industrial solid waste activities regarding the quantitiesstored, processed, and disposed on site or shipped off site for storage,processing, or disposal in accordance with the requirements of §335.9of this title;
(2) for off-site facilities, submit the appropriatereports required under §335.15(2) of this title (relating toRecordkeeping and Reporting Requirements Applicable to Owners or Operatorsof Storage, Processing, or Disposal Facilities);
(3) record the dry-weight amount of each waste disposedin an underground injection well at the facility;
(4) document the basis for the assessment of any applicablefee as determined under §335.325 of this title (relating to IndustrialSolid Waste and Hazardous Waste Management Fee Assessment), includingany adjustment to or exemption from assessment; and
(5) except as provided in §335.328 of this title(relating to Fees Payment), submit a monthly summary of on-site wastemanagement activities subject to the assessment of fees under §335.325of this title on forms furnished or approved by the executive director.This summary report shall be due by the 25th day following the endof the month (or quarter) for which a report is made. An owner oroperator required to comply with this subsection shall continue toprepare and submit monthly (or quarterly) summaries, regardless ofwhether any storage, processing, or disposal was made during a particularmonth (or quarter), by preparing and submitting a summary indicatingthat no waste was managed during that month (or quarter).
(c) Records or reports required to be kept under thissection shall be retained for a minimum of three years after the datethe record or report is made.
(d) The periods of record retention required by thissection are automatically extended during the course of any unresolvedenforcement action regarding the regulated activity.
The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.
Filed with the Office of the Secretary of State on May 13, 2024.
TRD-202402108
Charmaine Backens
Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 23, 2024
For further information, please call: (512) 239-2678
